JUDGMENT NO. 173

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 constitutional legitimacy proceedings concerning Article 624-bis, fourth paragraph, of the Penal Code, initiated by the Ordinary Court of Teramo, in single-judge composition, with an order dated May 16, 2024, registered under no. 144 of the register of orders for 2024 and published in the Official Gazette of the Republic no. 33, first special series, of 2024.

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

heard in the chamber of council on October 20, 2025, the Reporting Judge Angelo Buscema;

deliberated in the chamber of council on October 20, 2025.

Facts Considered

1.– The Ordinary Court of Teramo, in single-judge composition, with an order dated May 16, 2024, registered under no. 144 of the ordinary register for 2024, raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy of Article 624-bis, fourth paragraph, of the Penal Code, insofar as, in regulating theft in a dwelling, it does not allow the mitigating circumstance of partial mental defect provided for by Article 89 of the Penal Code to be deemed prevailing or equivalent when it concurs with the aggravating circumstance under Article 625, first paragraph, number 2), first part, of the Penal Code (violence against things).

The referring judge reports that it must adjudicate a man accused of the crime under Articles 624-bis and 625, first paragraph, number 2), of the Penal Code (theft in a dwelling aggravated by violence against things) who, with the aim of procuring an undue profit, after forcing the entrance door and entering a dwelling, took possession of a television set and a coin purse containing the sum of 35.00 euros.

The perpetrator of the crime was apprehended in the act, and the validation hearing and the summary judgment proceedings were carried out within the legal timeframe, during which the judge ordered an expert examination to ascertain the capacity to understand and will of the accused at the time of the commission of the act.

The referring judge asserts that the accusation of the aggravating circumstance of violence against things is correct, as the evidentiary findings suggest that the accused damaged the entrance door of the offended party’s tavern, scratching it near the lock.

The referring judge then reports that the expert examination regarding the capacity to understand and will states that the accused suffers from cognitive decline resulting from chronic intoxication by alcohol and narcotics, with the consequence that the capacity to comprehend the wrongfulness of the actions and to choose alternative conduct, although not eliminated, is greatly diminished.

Further expert reports drafted in other criminal proceedings concerning the same accused and acquired in the present proceedings support the finding of the accused's partial incapacity to understand and will at the time of the act.

It is therefore widely proven that the accused, at the time of the act, suffered from a reduced capacity to understand and will, with the consequence that the mitigating circumstance under Article 89 of the Penal Code could be applied, but, at the same time, it would not be possible to proceed with a judgment pursuant to Article 72-bis of the Code of Criminal Procedure (i.e., a judgment of non-lieu or a judgment of no need to proceed) and that there is, consequently, a concrete possibility that, at the conclusion of the trial, the accused may be convicted of the crime of theft in a dwelling aggravated by violence against things.

It is further emphasized that, in a hypothetical balancing judgment between the circumstance in question and the mitigating circumstance under Article 89 of the Penal Code, clear precedence would have to be given to the latter. Indeed, the grave psychopathological condition of the accused, as documented and described by the experts, outlines a scenario in which the gravity of the commission of the criminal act attributed to him would be strongly induced by his mental state, thus significantly reducing his capacity to grasp the social meaning of his unlawful conduct, as well as to choose in an oriented manner among the various impulses to act. Therefore, the subjective blameworthiness of the crime attributed to the accused would be greatly reduced, due to the partial incapacity to understand and will from which he suffered at the time of the commission of the act; owing to this incapacity, the mitigating circumstance under Article 89 of the Penal Code would assume a preponderant weight in the concrete penal disvalue of the conduct, compared to the aggravating circumstance of violence against things, also considering the low economic value of the object affected by the violence, as well as the reduced pecuniary damage caused to the offended party.

However, the referring judge observes that, for the crime of theft in a dwelling, Article 624-bis, fourth paragraph, of the Penal Code, precludes the normal judgment of balancing circumstances, providing textually that "The mitigating circumstances, other than those provided for by Articles 98 and 625-bis, concurrent with one or more of the aggravating circumstances under Article 625, cannot be deemed equivalent or prevailing over them, and the reduction of the penalty shall be applied to the amount thereof resulting from the increase consequent to the aforementioned aggravating circumstances”; consequently, the clear literal wording of the provision allows, in the present case, the mitigating circumstance of partial mental defect to be given effect only after the base penalty has been increased by applying the aforementioned aggravating circumstance related to violence against things.

As for the non-manifest groundlessness, the referring judge believes that the question of constitutional legitimacy would be justified by this Court’s judgment no. 217 of 2023, which declared the unconstitutionality of Article 628, fifth paragraph, of the Penal Code, insofar as it does not allow the mitigating circumstance provided for by Article 89 of the Penal Code to be deemed prevailing or equivalent when it concurs with the aggravating circumstance under the third paragraph, number 3-bis), of the same Article 628 of the Penal Code.

The latter provision, relating to the crime of robbery, is structured in a manner entirely similar to that under review, in that, in both, the legislator has provided for a mechanism whereby, upon the occurrence of certain aggravating circumstances, concurrent mitigating circumstances are not subject to the ordinary balancing judgment, stipulating that the reduction of the penalty for the latter shall only be applied after the increase for the aggravating circumstance has been applied to the base penalty; in both provisions, furthermore, the legislator excludes the circumstance under Article 98 of the Penal Code from this rule.

Following the aforementioned judgment no. 217 of 2023, once the legislator has chosen to provide for a specific derogation from the application of the mechanism for calculating circumstances provided for by Article 628, fifth paragraph, of the Penal Code in favour of minors, an imperative of internal coherence within the system requires that this derogation also extend to the entirely analogous position of defendants affected by partial mental defect.

According to the referring judge, these arguments would also apply well to the provision under review, as, even in Article 624-bis, fourth paragraph, of the Penal Code, the mitigating circumstance of Article 98 of the Penal Code is excluded from the range of mitigating circumstances subject to the rule therein provided, whereas the circumstance of the so-called partial mental defect is unjustifiably included, despite the fact that there is a common rationale justifying the provision of both, namely that of mitigating the sanction when the criminal act is committed by a subject with a limited degree of capacity to understand and will.

Similarly, there would be no relevant differences between the two types of crime such that the declaration of unconstitutionality regarding the crime of robbery – insofar as it does not allow the mitigating circumstance under Article 89 of the Penal Code to be deemed prevailing or equivalent, even when concurrent with other aggravating circumstances – cannot also be found in respect of the crime of theft in a dwelling: these are, in fact, norms classified among crimes against property by means of violence against things or persons. Both criminal provisions, moreover, are structured as so-called complex crimes and both provide for the crime of theft as the base offense. Both norms are also articulated in the structure of a damage crime and a constrained form. Both robbery and theft in a dwelling, moreover, are crimes intended to protect multiple legal interests, safeguarding not only property, but also the physical integrity of the victim in the former case, and individual safety and, more generally, the sphere of inviolability and privacy of the person in the latter case.

Finally, the conflict of the provision with the Constitution could not be resolved through a constitutionally oriented reading, given its unequivocal literal meaning.

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

In the first place, according to the Attorney's Office, the referring judge's assumption regarding the absolute homogeneity between the two mitigating circumstances, minority and partial mental defect, concerning which, in the opinion of the Court of Teramo, there is a common rationale justifying their provision, namely that of mitigating the sanction when the criminal act is committed by a subject with a limited degree of capacity to understand and will, is not convincing.

The mitigating circumstance of partial mental defect, in fact, is based solely on the existence of a defect in the capacity to understand and will, whereas, in practice, the case of a minor offender with a degree of maturity equal to, if not greater than, that of an adult could be hypothesized; since the law does not provide for the possibility for the Juvenile Court not to grant the mitigating circumstance, it is inferred that the rationale underlying this penalty reduction is not only to accommodate a possible limitation of the capacity to understand and will, but also to favour the minor.

Furthermore, the second premise underlying the referring judge's interpretive approach—namely, the homogeneity or, in any event, the assimilability between the crime of theft in a dwelling under Article 624-bis of the Penal Code and the crime of robbery under Article 628 of the Penal Code—is also not shareable, as the former is a criminal provision that protects, as a constitutionally derived legal interest, the domicile, whereas this rationale is extraneous to the latter provision.

The State Defence also points out that the legislator is free, in the exercise of his broad discretion, to make the criminal policy assessments he deems preferable, subject to the insurmountable limit of unreasonable arbitrariness and manifest unreasonableness, concepts that are different and more serious than the mere disputability of a norm, such as the one in question, which cannot be accused of manifest unreasonableness.

Moreover, constitutional jurisprudence (citing Constitutional Court Judgment no. 88 of 2019) has consistently held that derogations to balancing are possible and fall within the scope of legislative choices, and are only reviewable if they escalate into manifest unreasonableness or arbitrariness (citing this Court's judgment no. 68 of 2012).

Furthermore, the State Defence notes that the aggravating circumstance in question does not absolutely preclude the application of the concurrent mitigating circumstances, but requires the judge to adopt a different method of application thereof, given that the judge could, in any case, operate the modification *in mitius* of the penalty quantum, with the precaution of doing so only after previously applying the aggravating circumstance. The legislator, therefore, has not radically eliminated the advantageous effect for the offender of the mitigating circumstances, but has merely downsized it.

Finally, it is recalled that constitutional jurisprudence (Judgment no. 117 of 2021) on "privileged" aggravating circumstances has developed mainly concerning repeated recidivism, whereas the prohibition of balancing established by Article 624-bis, fourth paragraph, of the Penal Code operates based on a different model.

Considerations in Law

1.– The Court of Teramo, in single-judge composition, with the order cited in the heading (reg. ord. no. 144 of 2024), raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy of Article 624-bis, fourth paragraph, of the Penal Code, insofar as, in regulating theft in a dwelling, it does not allow the mitigating circumstance of partial mental defect provided for by Article 89 of the Penal Code to be deemed prevailing or equivalent when it concurs with the aggravating circumstance under Article 625, first paragraph, number 2), first part (violence against things), of the Penal Code.

The referring judge, based on what was stated in this Court's judgment no. 217 of 2023, considers it unreasonable that, despite the identical rationale between the mitigating circumstance of minority under Article 98 of the Penal Code – for which balancing with aggravating circumstances is possible – and the one in question of partial mental defect, the latter must receive different and more detrimental treatment.

2.– The State Attorney’s Office asserts the non-foundation of the question due to the legislator's discretion in deciding on possible derogations to the balancing of circumstances and highlights the diversity, on the one hand, of the two circumstances compared, since that under Article 98 of the Penal Code, unlike partial mental defect, is inspired by an intent of reward towards the minor and, on the other hand, of the two crimes of theft in a dwelling and robbery, which protect partially different legal interests.

3.– The question is well-founded.

3.1.– This Court, regarding the balancing of circumstances in the crime of robbery, first with the cited judgment no. 217 of 2023 and subsequently with judgment no. 130 of 2025, declared Article 628, fifth paragraph, of the Penal Code unconstitutional, for conflict with Article 3 of the Constitution, insofar as it does not allow the mitigating circumstance provided for by Article 89 of the Penal Code to be deemed prevailing or equivalent when it concurs, in the first case, with the aggravating circumstance under the third paragraph, number 3-bis), of the same Article 628 (i.e., if the act is committed in a building or other place intended in whole or in part for private dwelling or its appurtenances or in places that hinder public or private defence) and, in the second case, with that under the subsequent number 3-quater) (if the act is committed against a person who is in the act of using or has just used the services of credit institutions, post offices, or ATMs for cash withdrawal).

The aforementioned rulings highlighted, in particular, "an unreasonable disparity [of the mitigating circumstance of partial mental defect] compared to the treatment reserved [for that] of minority under Article 98 of the Penal Code, expressly excluded by the legislator from the prohibition of equivalence or precedence over the aggravating circumstances listed in Article 628, fifth paragraph.”

Specifically, this Court observed that "the assessment, by the legislator, of a lower deservedness of the penalty for one who committed the act while still a minor, although already deemed imputable by the judge […] ‘cannot […] but be affirmed’ also with reference to one who, being affected by partial mental defect, acted while being in ‘such a state of mind as greatly to diminish, without excluding it, the capacity to understand and will’ (Article 89 of the Penal Code)” (Judgment no. 130 of 2025).

The rationale for the two mitigating circumstances is therefore identical, "founded on the lesser degree of blameworthiness of the offender,” so that, "an imperative of coherence, through internal lines of the system,” requires the application of the derogation provided for by Article 628, fifth paragraph, of the Penal Code for minor offenders, also to "offenders affected by partial mental defect” (Judgment no. 217 of 2023).

With specific reference to the mechanism in question, the so-called mechanism of "total shielding” of aggravating circumstances (according to which they must necessarily be taken into account for the purpose of the penalty quantum and cannot be "neutralised” through balancing with any mitigating circumstances), this Court "has, until now, always excluded that such a mechanism is, in itself, incompatible with the constitutional principles from time to time invoked” (again, Judgment no. 217 of 2023).

In this regard, it has been observed that derogations to balancing are possible and fall within the scope of legislative choices when particular needs arise for the protection of constitutionally protected interests (Judgments no. 217 of 2023 and no. 117 of 2021). In such cases, the legislator may well lay down special criteria for the application of circumstances, requiring that the increase in penalty resulting from particular circumstances be calculated first, and only subsequently the reductions connected with the recognition of mitigating circumstances.

In guiding the assessment of this Court in such cases, the consideration that the mechanism for calculating increases and reductions of the penalty connected with the application of opposing circumstances produces, in the general run of cases, an effect of increased sanctions applicable to the aggravated offense, in line, moreover, with the legislator's intentions, but does not in any way exclude the judge from concretely applying the reduction of the penalty connected with the recognition of mitigating circumstances, albeit to the penalty already increased as a result of the recognition of the so-called "shielded” aggravating circumstance, has been decisive.

3.2.– In the present case, this Court has no reason to depart from what was stated in the aforementioned judgments no. 217 of 2023 and no. 130 of 2025.

The elements of distinction between the issue under review (namely, the fact that the "shielding” mechanism refers to the crime of theft in a dwelling and that the aggravating circumstance which the referring judge wishes to balance with partial mental defect is that of violence against things) and those that were the subject of the aforementioned judgments do not justify a different solution.

3.3.– For clarity, it is necessary to restate the relevant parts of the provisions regarding theft in a dwelling (Article 624-bis of the Penal Code) and robbery (Article 628 of the Penal Code).

The last paragraph of Article 624-bis of the Penal Code establishes that "[t]he mitigating circumstances, other than those provided for by Articles 98 and 625-bis, concurrent with one or more of the aggravating circumstances under Article 625, cannot be deemed equivalent or prevailing over them, and the reduction of the penalty shall be applied to the amount thereof resulting from the increase consequent to the aforementioned aggravating circumstances.”

In a completely analogous manner, Article 628, fifth paragraph, of the Penal Code provides that "[t]he mitigating circumstances, other than that provided for by Article 98, concurrent with the aggravating circumstances under the third paragraph, numbers 3), 3-bis), 3-ter) and 3-quater), cannot be deemed equivalent or prevailing over them, and the reduction of the penalty shall be applied to the amount thereof resulting from the increase consequent to the aforementioned aggravating circumstances.”

3.4.– Well then, the fact that the mechanism of "total shielding” refers to the crimes of theft in a dwelling and petty theft (Article 624-bis of the Penal Code), whereas in the two jurisprudential precedents cited it referred to the crime of robbery (Article 628 of the Penal Code), is irrelevant, given that the challenges are not aimed at the aforementioned mechanism – which this Court deems legitimate – but at what the exceptions to this mechanism should be, which the referring judge wishes to extend to the partial mental defect under Article 89 of the Penal Code.

3.5.– As for the differences concerning the aggravating circumstance with which the mitigating circumstance of partial mental defect comes into relation, the considerations already set out by this Court in Judgment no. 130 of 2025 apply, *mutatis mutandis*.

The difference between the aggravating circumstances, so-called privileged ones, which were taken into consideration in the cited judgments no. 217 of 2023 and no. 130 of 2025 and the one relevant today (violence against things) does not justify a solution that deviates from the previous ones, precisely because, even in that context, the failure to extend the exception provided for in the case of minority to the mitigating circumstance of partial mental defect was censured, based on considerations founded not on the nature of the aggravating circumstances, but on the equivalence between the condition of the partially mentally defective person and that of the minor, both subjects who exhibit a significantly reduced degree of blameworthiness; considerations that are fully transposable to the case at hand.

4.– Therefore, the unconstitutionality, for violation of Article 3 of the Constitution, of Article 624-bis, fourth paragraph, of the Penal Code must be declared, insofar as it does not allow, in the case of the crime of theft in a dwelling, the mitigating circumstance provided for by Article 89 of the Penal Code to be deemed equivalent or prevailing when it concurs with the aggravating circumstance under Article 625, first paragraph, number 2), first part, of the Penal Code.

for these reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 624-bis, fourth paragraph, of the Penal Code, insofar as it does not allow, in the case of the crime of theft in a dwelling, the mitigating circumstance provided for by Article 89 of the Penal Code to be deemed equivalent or prevailing when it concurs with the aggravating circumstance under Article 625, first paragraph, number 2), first part, of the Penal Code.

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

Signed:

Giovanni AMOROSO, President

Angelo BUSCEMA, Rapporteur

Roberto MILANA, Director of the Registry

Filed with the Registry on November 27, 2025