JUDGMENT NO. 182
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, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following
JUDGMENT
in the constitutional legitimacy review of Article 37, paragraph 1, letter a), of the Code of Criminal Procedure, in relation to Article 36, paragraph 1, letter g), of the same Code, promoted by the Court of Cassation, Sixth Penal Section, in the criminal proceedings against M. F. by order of December 4, 2024, registered under no. 243 of the ordinary rulings register of 2024 and published in the Official Gazette of the Republic no. 3, special series, of 2025.
Having seen the statement of constitution of M. F. as well as the statement of intervention of the President of the Council of Ministers;
Heard at the public hearing of September 23, 2025, the Reporting Judge Massimo Luciani;
Heard the lawyer Marco Talini for M. F. and the State Attorney Salvatore Faraci for the President of the Council of Ministers;
Deliberated in the chamber of counsel on September 23, 2025.
Facts of the Case
1.– By order of December 4, 2024, registered under no. 243 of the ordinary rulings register of 2024, the Court of Cassation, Sixth Penal Section, called to rule on the appeal lodged against the order rejecting the challenge to the recusal filed by M. F. against the magistrates of the Ordinary Court of Florence, raised ex officio, in reference to Articles 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union, a question of constitutional legitimacy regarding Article 37, paragraph 1, letter a), of the Code of Criminal Procedure, in relation to Article 36, paragraph 1, letter g), of the same Code, insofar as it does not provide for the possibility for the parties to recuse the judge who, called to decide on the application of the property prevention measure, has ordered, in the same proceedings, pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of September 6, 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law no. 136 of August 13, 2010), the return of the case file to the proposing authority.
1.1.– Regarding the facts of the case, the referring court reports that the Court of Florence, deciding on the request for seizure of assets of the proposed subject filed in the context of a prevention proceeding, ordered the return of the case file to the Public Prosecutor pursuant to the aforementioned Article 20, paragraph 2, of Legislative Decree no. 159 of 2011, deeming the investigations incomplete and indicating the further necessary property investigations. It further reports that, following the filing by the Public Prosecutor of the requested evidentiary integration, the aforementioned Court: i) ordered, as a precautionary measure, the prevention seizure of assets available, directly or indirectly, to the proposed subject; ii) set the hearing for the decision on the request for application of personal and property prevention measures; iii) rejected two statements of abstention that had been filed. Finally, it reports that, subsequently, the Court of Appeal of Florence, with the provision that is the subject of the initial appeal to the Court of Cassation leading to the present proceedings, rejected the request for recusal of the components of the Court panel filed by the proposed subject.
1.2.– The referring court first provides reasons regarding the relevance of the question, observing that the challenged norm must be applied in the principal judgment and that a declaration of constitutional illegitimacy would allow the initial appeal to be upheld.
Nor, the referring court argues, is a constitutionally oriented interpretation of Article 37 of the Code of Criminal Procedure feasible, as the grounds for the judge’s recusal are exhaustive and cannot be extended by analogy.
1.3.– Regarding the non-manifest unfoundedness, the referring court holds that the norm of Article 37, paragraph 1, letter a), of the Code of Criminal Procedure is in conflict with Articles 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Articles 6 ECHR and 47 CFREU.
It first notes that the return of the case file, provided for by Article 20, paragraph 2, of the Anti-Mafia Code, may involve, as would have happened in the case under consideration in those proceedings, intrusive substantive assessments concerning the dangerousness of the proposed subject and the disproportion between income and property results, which widely anticipate the appraisals that should have been expressed in the decision on the request for preventative confiscation (and preliminary seizure), which would lead to the incompatibility of the judges to decide on the confiscatory measure and justify their recusal.
It asserts that, while the current regulation does not expressly provide for grounds for recusal in prevention proceedings, case law of the Court of Cassation has deemed applicable the rules on incompatibility, abstention, and recusal of the judge laid down in Articles 34, paragraph 1, 35, 36, paragraph 1, letters a), b), c), d), f) and h), and 37, paragraph 2, of the Code of Criminal Procedure (referencing the judgment of the Court of Cassation, First Penal Section, of May 27-October 12, 2016, no. 43081), which concern all hypotheses of "clouding" the appearance of impartiality due to non-judicial reasons or, in any case, external to the proceedings.
The conflict registered in the case law of the Court of Cassation regarding the possibility of recusing the judge called to apply prevention measures due to assessments previously expressed against the same subject in criminal proceedings or in another prevention proceeding was instead resolved by the United Criminal Sections of the Court of Cassation, affirming the principle that the ground for recusal contained in Article 37, paragraph 1, of the Code of Criminal Procedure – as resulting from the additive intervention made by this Court with Judgment No. 283 of 2000 – is applicable to prevention proceedings in cases where the judge has previously expressed substantive assessments on the same facts against the same subject in another prevention proceeding or in criminal proceedings (Court of Cassation, United Criminal Sections, Judgment of February 24-July 6, 2022, no. 25951). In this regard, the referring court pointed out that this Court’s Judgment No. 238 (recte: 283) of 2000, which declared the constitutional illegitimacy of Article 37, paragraph 1, of the Code of Criminal Procedure, "insofar as it does not provide that the judge who, called to rule on the responsibility of an accused, has expressed in another proceeding, even non-criminal, a substantive assessment on the same facts against the same subject, may be recused by the parties,” has a "bidirectional" scope, meaning that in relation to prevention proceedings, it considers not only the assessments expressed in the prevention proceeding on the subsequent substantive decision but also the assessments expressed in the substantive judgment or in another prevention proceeding to be prejudicial.
The principle affirmed by the aforementioned judgment of the United Criminal Sections No. 25951 of 2022, however, would not be applicable to the case under the consideration of the referring court, as it concerns hypotheses in which the prejudicial assessment was expressed in a proceeding distinct from the one being prejudiced, whereas in the present case, resulting from the return of the case file to the proposing body, it occurred within the same prevention proceeding, regardless of the formal fact of the registration of a new proceeding.
Given the foregoing, the referring court observes that the prejudice to the impartiality-neutrality of the judge can also be determined by the assessments expressed in the order returning the case file to the proposing body, ordered pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of 2011. In that order, a positive assessment of the merits of the proposal (not only on the dangerousness of the proposed subject, but also on the disproportion of property or income results) may be formulated, which, "only due to minimal evidentiary deficiencies, indicated by the court to the proposing body," does not lead to the acceptance of the seizure proposal. The substantive appraisal made by the court in returning the case file, in fact, may be so incisive as to result in a sort of provision of acceptance conditioned on the supplementation of evidentiary gaps or, in any case, an anticipation of future acceptance once the identified deficiencies are remedied.
In this regard, the Court refers to Judgment No. 24 of 2019 of this Court, where the existence of a genuine "guarantee framework (constitutional and conventional) for prevention measures, personal (...) and property measures" was affirmed, which, although not having a sanctioning or repressive nature, affects rights to freedom of movement, property, and economic initiative, and which, therefore, requires a proceeding respectful of the general canons of "fair trial" guaranteed by law (Articles 111, first, second, and sixth paragraphs, of the Constitution, and Article 6 ECHR, in its "civil aspect"), and Judgment No. 179 of 2024, where it was affirmed that the principle of the third and impartial judge acquired autonomous relevance with Constitutional Law no. 2 of November 23, 1999 (Insertion of the principles of fair trial into Article 111 of the Constitution).
The failure to provide for a ground for recusal of the judge who ordered the return of the case file would therefore, due to the substantive assessments expressed, violate the fundamental right of the proposed subject to an impartial judge – explicitly recognized also by Articles 47 CFREU, 6 ECHR, and Article 14, paragraph 1, of the International Covenant on Civil and Political Rights (ICCPR) adopted by the General Assembly of the United Nations on December 16, 1966 – while simultaneously violating their right to defense, as it would not allow them to "activate the oppositional remedies aimed at guaranteeing the impartiality of the judge."
The referring court adds that the principle, constantly affirmed by the constitutional and ordinary case law, that no incompatibility arises for the judge functionally designated for the stage who has provided for a precautionary measure in the same stage (referencing this Court’s Judgment No. 93 of 2024) is not relevant, as constitutional case law distinguishes, for this purpose, "precautionary measures adopted by the judge in the merits proceedings, which have a merely intra-stage effect, from the provisions of the judge returning the case file to the Public Prosecutor." The latter, in fact, assume a prejudicial effect, since the transmission of the case file to the Public Prosecutor determines the regression of the proceedings to the preliminary investigation stage (referencing this Court's judgments No. 16 of 2022, No. 400 of 2008, and No. 455 of 1994).
This being established, the referring court argues that the return of the case file ordered pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of 2011, in the context of the same prevention proceeding, concludes the decision-making stage of the court and determines the expansion of the investigation stage, with the consequent return to the proposing body of the entirety of its attributions and prerogatives (including the power to dismiss the prevention proceeding). The filing of the new proposal for the application of the prevention measure would open a new stage of the same first-instance judgment, distinct from the previous one, in which "the substantive assessment expressed in the order rejecting the first proposal exercises its prejudicial effect."
The power to return the case file to the proposing body pursuant to the repeatedly cited Article 20, paragraph 2, would be only apparently analogous to the power granted by Article 421-bis, paragraph 1, of the Code of Criminal Procedure to the judge of the preliminary hearing to indicate further investigations to the Public Prosecutor if the previous ones were incomplete, since, in that case, the criminal proceedings remain pending in the preliminary hearing stage. It would instead have effects analogous to those determined by the provision for "compelled investigations," ordered pursuant to Article 409, paragraph 4, of the Code of Criminal Procedure, by the preliminary investigation judge seized of the request for dismissal, who cannot retain the case file in his office but must return it to the Public Prosecutor, who, following the new investigations, may decide whether to initiate criminal action or request dismissal again.
On the basis of these interpretative coordinates, the referring court argues that the return of the case file ordered by the court, called to apply the preventative seizure and confiscation, takes on a prejudicial effect pursuant to Article 34 of the Code of Criminal Procedure. Firstly, the assessments expressed in the order returning the case file concern the same res iudicanda that is the subject of the subsequent proposal; secondly, the judge who returns the case file not only knows but also assesses the evidentiary elements and, therefore, decides on the merits of the prevention measure, substantially expressing an opinion on the well-foundedness of the related proposal; thirdly, the provision returning the case file, by determining the regression of the prevention proceeding to the initial stage, restores the proposing body to its attributions.
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, requesting that the aforementioned constitutional legitimacy question be declared unfounded.
The question would indeed be unfounded, as the constitutional case law has excluded that the judge who has provided for a precautionary measure in the same stage is incompatible from deciding on the merits, as the need for continuity and globality must be preserved, and the fragmentation of the proceedings must be avoided (referencing this Court's Judgment No. 93 of 2024).
This need would be frustrated by upholding the question raised by the referring court, as for the same stage of the judgment it would be necessary to have as many different judges as there are acts to be performed, and evident dissonant effects would arise, recognizing hypotheses of incompatibility even in the case of requests for integration of mere material or evidentiary data (such as the number and/or exact indication of the assets subject to seizure).
The unity of the seizure and confiscation proceedings, structured by law as a unitary procedural stage, would exclude the violation of the impartiality and impartiality of the judge, since with the evidentiary request he would not be anticipating a positive or negative judgment on the merits of the proposal.
Moreover, the provision of Article 20, paragraph 2, of Legislative Decree no. 159 of 2011 itself clarifies that the court's power to indicate further property investigations to the Public Prosecutor is aimed at "assessing the existence of the prerequisites referred to in paragraph 1 for the application of the seizure or the measures referred to in Articles 34 and 34-bis." This assessment, which would imply an anticipation of the judgment, cannot therefore precede the request for further investigations and in any case cannot be considered such as to vitiate the guarantee of the judge's impartiality.
3.– The party M. F., against whom the prevention measures are requested in the proceedings at hand, constituted itself in the proceedings, concluding for the well-foundedness of the constitutional legitimacy question.
Recalling the development of the prevention proceeding at hand and the main arguments of the referral order, shared without reservation, the party dwells on the difference between precautionary measures issued within the same stage and provisions for return, which determine a regression of the proceeding and, therefore, a prejudicial effect, emphasizing the relevant substantive assessments contained in the order for the seizure of assets, merely anticipatory of the subsequent provision for confiscation ordered at the conclusion of the adversarial process. Therefore, the intrusive substantive assessment underlying the seizure, similar to that which underpins the subsequent confiscation, would make the prejudicial effect determined by the provision returning the case file to the proposer under paragraph 2 of Article 20 of Legislative Decree no. 159 of 2011 evident.
Considerations in Law
1.– With the order indicated in the heading, registered under no. 243 of the ordinary rulings register of 2024, the Court of Cassation, Sixth Penal Section, raised ex officio, in reference to Articles 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Articles 6 ECHR and 47 CFREU, questions of constitutional legitimacy regarding Article 37, paragraph 1, letter a), of the Code of Criminal Procedure, in relation to Article 36, paragraph 1, letter g), of the same Code, insofar as it does not provide for the possibility for the parties to recuse the judge who, called to decide on the application of the property prevention measure, has ordered, in the same proceedings, pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of 2011, the return of the case file to the proposing authority.
1.1.– The referring court reports that the Court of Florence, deciding on the request for confiscation (and preliminary seizure) of assets of the proposed subject filed in the context of a prevention proceeding, ordered, pursuant to the aforementioned Article 20, paragraph 2, the return of the case file to the Public Prosecutor, deeming the investigations incomplete and indicating the further necessary property investigations. It adds that, following the filing by the Public Prosecutor of the requested evidentiary integration, the aforementioned Court: ordered, as a precautionary measure, the prevention seizure of assets available, directly or indirectly, to the proposed subject; set the hearing for the decision on the request for application of personal and property prevention measures; rejected two statements of abstention. It then recalls that, subsequently, with the provision that is the subject of the initial appeal to the Court of Cassation leading to the present proceedings, the Court of Appeal of Florence rejected the declaration of recusal of the components of the Court panel filed by the proposed subject.
1.2.– The referring court believes that the challenged norm must be applied in the principal judgment and that any declaration of constitutional illegitimacy would allow the initial appeal to be upheld. This would be sufficient to establish the necessary requirement of relevance of the quaestio.
1.3.– Regarding the non-manifest unfoundedness, the referring court holds that the norm of Article 37, paragraph 1, letter a), of the Code of Criminal Procedure is in conflict with Articles 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Articles 6 ECHR and 47 CFREU, because the prejudice to the impartiality-neutrality of the judge can also be determined by the assessments expressed in the order returning the case file to the proposing body, ordered pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of 2011. In that order, in fact, an assessment of the merits of the proposal (on the existence not only of the dangerousness of the proposed subject but also of the disproportion of property and income results) may be formulated, which does not lead to the acceptance of the seizure request "only due to minimal evidentiary deficiencies, indicated by the court to the proposing body." The substantive appraisal made by the court in returning the case file, in fact, may be so incisive as to result, substantially, in a sort of provision of acceptance conditioned on the supplementation of evidentiary gaps or, in any case, an anticipation of future acceptance once the identified deficiencies are remedied.
Given the weight of the substantive assessments expressed, the failure to provide for a ground for recusal of the judge who ordered the return of the case file would therefore violate the fundamental right of the proposed subject to an impartial judge – explicitly recognized also by Articles 47 CFREU, 6 ECHR, and Article 14, paragraph 1, ICCPR – while simultaneously violating their right to defense, as it would not allow them to "activate the oppositional remedies aimed at guaranteeing the impartiality of the judge." The referral order, moreover, refers to the aforementioned Article 14, paragraph 1, ICCPR only in this context and does not take it as an intervening parameter in points 5 and 7.2. of the Considerations in Law where Articles 47 CFREU and 6 ECHR are expressly invoked.
Furthermore, the principle that excludes incompatibility to decide on the merits for the sole judge functionally designated for the stage who has provided for a precautionary measure in the same stage is not relevant, since in the present case it would not be a precautionary measure adopted by the judge in the merits proceedings, with a merely intra-stage effect, but a provision returning the case file to the Public Prosecutor that assumes a prejudicial effect, since "the transmission of the case file to the Public Prosecutor determines the regression of the proceedings to the preliminary investigation stage."
On the basis of these interpretative coordinates, the referring court argues that the return of the case file ordered by the court, called to apply the preventative seizure and confiscation, takes on a prejudicial effect pursuant to Article 34 of the Code of Criminal Procedure. Firstly, it asserts, the assessments expressed in the order returning the case file concern the same res iudicanda that is the subject of the subsequent proposal. Secondly, the judge who returns the case file not only knows but also assesses the evidentiary elements, thus deciding on the merits of the prevention measure, substantially expressing an opinion on the well-foundedness of the proposal. Thirdly, the provision returning the case file, by determining the regression of the prevention proceeding to the initial stage, restores the proposing body to its attributions.
2.– The constitutional legitimacy question concerning the alleged violation of Article 47 CFREU is inadmissible, as the referring court does not indicate why, and to what extent, the case is governed by EU law.
Article 51, paragraph 1, CFREU establishes, in fact, that the provisions of the Charter apply to Member States "only when implementing Union law."
This results in two consequences, repeatedly highlighted by this Court.
On the one hand, "the Charter of Fundamental Rights of the European Union can be invoked, as an intervening parameter in a constitutional legitimacy review only when the domestic legislation under review is also governed by European law (ex plurimis, Judgments No. 185, No. 33 and No. 30 of 2021, No. 278 and No. 254 of 2020 and No. 194 of 2018)" (Judgment No. 213 of 2021).
On the other hand, it is the duty of the referring court to explain the reasons for which the challenged regulation falls within the scope of application of European Union law, so that any lack of reasoning prevents the invocation of the rights recognized by the CFREU "as intervening parameters in the incidental review of constitutional legitimacy (ex multis, Judgments No. 213, No. 185, No. 33 and No. 30 of 2021)" (Judgment No. 28 of 2022, as well as, in the same sense, more recently, Judgments No. 5 of 2023 and No. 34 of 2022); "[t]his naturally does not preclude the possibility that the rights of the Charter may be used as interpretative tools in reading the corresponding constitutional provisions (as, for example, in Judgments No. 33 of 2021, No. 102 of 2020, No. 272 of 2017 and No. 236 of 2016)" (again, Judgment No. 28 of 2022).
3.– The constitutional legitimacy questions concerning the alleged violation of the other parameters invoked by the referring court are not well-founded.
3.1.– Constitutional case law is firm in recognizing the importance of the guarantee of the impartiality and neutrality of the judge, a safeguard not only for the functioning of the judiciary but also for the citizens' right to defense; in this regard, this Court has often reiterated that "the regulation of judge incompatibility finds its rationale in safeguarding the values of the impartiality and neutrality of the judge – safeguarded by Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR, in reference to which the questions of constitutional legitimacy are admissible – aiming to exclude that the judge may rule conditioned by the 'force of precedent,' i.e., the tendency to confirm a decision or maintain an attitude already assumed, derived from assessments that the judge was previously called upon to make regarding the same res iudicanda. It is necessary 'that the functions of judging be assigned to a subject who is 'third,' free from self-interests that could obscure the rigorous application of the law and also free from preconceived notions regarding the matter on which they rule' (Judgment No. 172 of 2023; in the same sense, Judgments No. 64, No. 16 and No. 7 of 2022 and previous ones cited therein)" (most recently, Judgment No. 93 of 2024).
These principles have also been affirmed with reference to personal prevention proceedings, albeit with some clarifications related to its peculiarities, noting that "[i]n the context of the principle of fair trial, which this Court has defined in various occasions based on the constitutional provisions relating to the regulation of jurisdiction, impartiality-neutrality of the judge occupies a central position, in the absence of which all other procedural rules and guarantees would lose their concrete meaning. This principle, in all its aspects, including precisely the impartiality of the judge, undoubtedly also applies to the judicial proceedings for the application of personal prevention measures that affect constitutionally guaranteed rights of liberty through a 'jurisdictional reservation.' In these cases, the guarantee represented by this reservation cannot be undermined through the weakening of the characteristics that qualify jurisdiction as such [...] the need to protect the judge called to rule on the proposal for the application of prevention measures from any prejudice that could compromise their impartiality is present to the same extent as it has been affirmed in relation to the judge who is called to rule in criminal proceedings" (Judgment No. 306 of 1997).
The institution that directly ensures the impartiality and neutrality of the judge during the trial is incompatibility (Articles 34 and 35 of the Code of Criminal Procedure), to which the judge's duty of abstention (Article 36 of the Code of Criminal Procedure) and the parties' right to request their recusal (Article 37 of the Code of Criminal Procedure) are linked. In this regard, it is worth noting that constitutional case law, which has ruled numerous times on the regulation of incompatibility under Article 34 of the Code of Criminal Procedure, has provided, particularly with Judgments No. 306, No. 307 and No. 308 of 1997, issued on the same day (and therefore not coincidentally subject to joint consideration in legal doctrine), an interpretative framework of the relationships between the institutions of incompatibility, on the one hand, and abstention and recusal, on the other, all aimed at safeguarding the impartiality of the judge. As a general principle, and as far as relevant here, intra-procedural incompatibility (so-called horizontal) under Article 34, paragraph 2, of the Code of Criminal Procedure presupposes the identity of the proceedings and operates in abstracto; grounds for abstention and recusal operate instead in concreto and concern situations outside the judgment in which the judge is called to decide, whether they are non-judicial activities or judicial activities carried out in another proceeding (Judgment No. 306 of 1997, point 2.2. of the Considerations in Law).
3.2.– However, the strictness of the incompatibility regime cannot lead to a malfunction of the jurisdiction, so the related norms must be applied only when there is a real and effective need to prevent the administration of justice from deviating from the path of impartiality and neutrality. This is why incompatibility (along with the connected institutions of mandatory abstention and recusal) does not apply when the previous, abstractly "prejudicial" assessments are made in the same stage of the proceedings (ex plurimis, Judgments No. 209, No. 179 and No. 93 of 2024, No. 172 and No. 91 of 2023, No. 64 of 2022).
The institution of incompatibility has the function of avoiding the risk that a pre-judgment burdens the judge's conviction, which can indeed occur even in the hypothesis – relevant in the case at hand – of the adoption of acts that the legal system considers, precisely, pre-judgmental, in the sense that the mere fact of the adoption itself is evaluated as a qualified index of the lack of effective free conviction regarding the adoption of subsequent acts. Nevertheless, it is evident that in any decision-making process, as a dynamic rather than static intellectual activity, the holder of the competent body matures their conviction in itinere, which can therefore be said to be "progressively formed." If this common-sense fact were not taken into account, one could end up applying the institutions of incompatibility, abstention, and recusal simply because the judge's conviction is progressively formed, which would lead to the absolute impossibility of the functioning of the jurisdiction. This is why – as already recalled – the case law of this Court is firm in excluding that incompatibility applies when the judge has adopted multiple acts within the same procedural stage, exactly because this constitutes a fraction of the decision-making process in which the phenomenon of the progressive formation of the judge's conviction occurs with particular concentration (regarding the constitutional case law that emphasizes the need for continuity and globality of the proceedings, avoiding excessive fragmentation, which will be discussed further at point 6.1.).
In our legal system, therefore, procedural law must ensure the maximum respect for the principles of impartiality and neutrality of the judge, but it must do so in compliance with both the needs of the functionality of the jurisdiction and the logic of these principles themselves, applied within procedural paths in which the judge's conviction necessarily forms progressively. This is why impartiality and neutrality are compromised when a judge who has already demonstrated a sufficiently structured conviction on the merits of the same facts on another occasion is called to rule again. And it is the occurrence of such an event that the Constitution intends to prevent.
4.– Precisely in compliance with these logical and systematic needs, the constitutional case law has clarified that "a constitutionally necessary incompatibility exists a) when the same judge has already performed an 'activity giving rise to prejudice,' in relation to the same res iudicanda, and b) is again called to perform a decision-making task in a 'stage prejudiced' by their previous activity. [...] As regards the 'activity giving rise to prejudice' first and foremost, according to the aforementioned case law of this Court, it exists in the presence of four essential conditions." In particular, "the assessments must concern the same res iudicanda. Secondly, the judge must have been called to carry out an assessment of previously performed acts, instrumentally for the assumption of a decision (and not simply have had knowledge of them). Thirdly, this assessment must relate to the merits of the accusation hypothesis (and not merely to the conduct of the proceedings). Finally, the previous assessments must be located in a different stage of the proceedings" (Judgment No. 209 of 2024).
4.1.– Regarding recusal, which is specifically relevant here, as the institution primarily considered by the referral order, it should be recalled that this Court, with Judgment No. 283 of 2000, declared the constitutional illegitimacy of Article 37, paragraph 1, of the Code of Criminal Procedure insofar as it does not recognize the parties' right to recuse the judge who, in a different proceeding, even non-criminal, has expressed a substantive assessment on the same facts and against the same subject. This ruling is particularly relevant for the purposes of the present proceedings, as it specifically concerns the prejudicial relationship between criminal proceedings and prevention proceedings, and thus ruled: "this Court has already had occasion to affirm that the prejudice to the impartiality-neutrality of the judge can also occur in the relationship between criminal proceedings and prevention proceedings, both when the prejudicial assessment has been expressed in the former in the context of ascertaining the serious indications of guilt, as a condition for the application of precautionary measures (Judgment No. 306 of 1997), and when the temporal relationship between the prejudicial activity and the prejudiced function is inverted, because the judge, called to rule on the criminal responsibility of an accused for the crime of mafia-type association, has already expressed an assessment within the prevention proceeding on the existence of the association and the belonging of the person accused in the subsequent criminal proceedings" (Order No. 178 of 1999).
In this regard, the interpretative conflict registered in the case law of the Court of Cassation regarding the applicability of grounds for incompatibility and recusal in prevention proceedings was resolved by the United Criminal Sections of the Court of Cassation with Judgment No. 25951 of 2022, where the principle was affirmed that the ground for recusal provided for by Article 37, paragraph 1, of the Code of Criminal Procedure – as resulting from the additive intervention made by this Court with the aforementioned Judgment No. 283 of 2000 – is applicable to prevention proceedings in cases where the judge has expressed substantive assessments on the same facts against the same subject in another prevention proceeding or in criminal proceedings.
5.– Given the foregoing, the referral order takes its starting point precisely from the recognition by the case law of the Court of Cassation of the possibility of recusing the prevention judge who has expressed substantive assessments on the same regiudicanda in another prevention proceeding, to then doubt the failure to provide for recusal even in the case where the substantive assessment was formulated in the same prevention proceeding, pursuant to Article 20, paragraph 2, of Legislative Decree no. 159 of 2011.
In particular, the power to return the case file to the proposing body provided for by this provision was introduced into the Anti-Mafia Code by Article 5, paragraph 4, of Law no. 161 of October 17, 2017 (Amendments to the Code of Anti-Mafia Laws and Prevention Measures, referred to in Legislative Decree no. 159 of September 6, 2011, to the Penal Code and provisions for implementation, coordination, and transition of the Code of Criminal Procedure and other provisions. Delegation to the Government for the protection of work in seized and confiscated companies), and was conferred upon the court, which, seized of the decision on the property measure, uses it when it deems that "the investigations are incomplete" and indicates "the further necessary property investigations to assess the existence of the prerequisites" for the adoption of the seizure or alternative non-confiscatory measures (judicial administration and judicial control) applicable.
The provision, entirely innovative (even compared to practice), did not eliminate, however, the investigative powers recognized to the court itself by Article 19, paragraph 5, of the same Legislative Decree no. 159 of 2011 ("In the course of the proceedings for the application of one of the prevention measures initiated against the persons indicated in Article 16, the court, if necessary, may carry out further investigations beyond those already carried out pursuant to the preceding paragraphs"), with which the provision now cited must therefore be coordinated.
Indeed, as appropriately observed in legal doctrine, the supplementary investigatory powers of the court should be reserved for hypotheses of marginal incompleteness, capable of being remedied by the judicial body itself. In this context, the return of the case file to the proposing authority – which is not only the Public Prosecutor but also the Questor or the Director of the Anti-Mafia Investigation Directorate – should only be ordered in case of serious incompleteness of the investigations, capable of being remedied only by the proposing authority, equipped with the appropriate investigation and inquiry tools. In other words, these should be omissions that have significant relevance and do not concern simple supplementary activities of the investigatory apparatus, which the court itself could perform.
Furthermore, as noted in legal doctrine, the provision of the aforementioned Article 20, paragraph 2, places this power of the court not only before the adoption of the seizure measure or non-confiscatory measures, but also before the setting of the hearing. And the placement of the power in this procedural sequence would seem to presuppose the hypothesis in which the court must decide, precisely because of the ascertained seriousness of the evidentiary incompleteness, on the rejection of the proposed measure.
This power of return therefore seems to be granted to the court precisely for hypotheses of serious evidentiary incompleteness, which should justify a rejection of the precautionary measures (seizure or non-confiscatory measures), and, as correctly understood by the referring court, it is functional to "prevent the proposed subject, informed of the precautionary initiative, from carrying out acts of dispersal or concealment of their assets" (point 3 of the Considerations in Law). This is a rationale that, conversely, does not occur in the case of marginal incompleteness, where the court, after ordering the precautionary seizure (or another, non-confiscatory measure), proactively activates the supplementary investigation powers recognized by Article 19, paragraph 5, of Legislative Decree no. 159 of 2011.
6.– The regulatory and interpretative framework illustrated so far is such as to preclude a compromise of the impartiality of the prevention judge who has ordered the return of the case file to the proposing authority. This applies both to the aspect of the existence of a ground for incompatibility and to the aspect of the existence of a ground for recusal, although it must be specified that in the case under examination by this Court the question was raised with reference to Article 37 of the Code of Criminal Procedure, even though the situation identified as prejudicial existed in the same prevention proceeding.
The identity of the proceedings, as already noted supra (point 3.1.), necessarily directs the review of constitutional legitimacy, as a priority and absorbing matter, towards the regulation of incompatibility.
The issue raised by the referring court focuses on the institution of incompatibility.
6.1.– Regarding the priority and absorbing aspect of the eventual relevance of a hypothesis of incompatibility, it must first be observed that the regulatory model of the prevention proceeding is that of a participatory chamber proceeding, provided for, in general, by Article 666 of the Code of Criminal Procedure (inserted in Book X, which governs the execution stage). Article 7, paragraph 9, of Legislative Decree no. 159 of 2011 supports this, which provides that: "For matters not expressly provided for by this decree, the provisions contained in Article 666 of the Code of Criminal Procedure shall apply, insofar as compatible."
To this general consideration must be added that the prevention proceeding is not structured by distinct "procedural" stages, as occurs instead in criminal proceedings (preliminary investigations, preliminary hearing, trial, alternative proceedings, etc.), and that it becomes a true prevention judgment when the adversarial process is implemented, following the adoption of the precautionary measure of seizure (or another, non-confiscatory measure) and the setting of the hearing in the chamber of counsel for the decision on confiscation.
While acknowledging the need for legislative intervention capable of structuring the prevention proceeding with greater precision, especially in the precautionary dimension, which has assumed such relevance in practice, it must be noted that it has an evidently single-stage nature, the impervious divisions that characterize the cognitive criminal trial, even if inspired by the accusatorial model, not being relevant. Consequently, the return of the case file to the proposing authority does not determine a stage regression, but identifies a mere sub-stage within a proceeding that remains unitary.
In this regard, the case law of this Court, consistently with the aforementioned needs for the functionality of the jurisdiction, has often reiterated that "[w]ithin each of the stages – understood as ordered sequences of acts that may involve incidental appraisals, even on the merits, of what is found therein, preceding the final decision – the need for continuity and globality must, in any case, be preserved, otherwise a fragmentation of the proceeding would occur, which would imply the necessity of having, for the same stage of the judgment, as many different judges as there are acts to be performed (Judgment No. 64 of 2022 and previous ones cited therein)" (Judgment No. 93 of 2024; ex plurimis, also Judgments No. 7 of 2022, No. 66 of 2019, No. 18 of 2017, No. 153 of 2012, No. 177 and No. 131 of 1996; Orders No. 76 of 2007, No. 123 and No. 90 of 2004, No. 370 of 2000 and No. 232 of 1999).
6.1.1.– The procedural situation arising from the return of the case file to the proposing authority appears more closely analogous to the hypothesis where, during the trial stage, a precautionary measure is requested from the presiding judge and rejected due to the deemed lack of serious indications of guilt. Although the trial for the determination on the merits of the accused's liability continues, the judge, within the limits of accessory competence on the decision of precautionary measures (Article 279 of the Code of Criminal Procedure), rejects the request for the measure and returns the files of the incidental precautionary proceeding without carrying out any "activity giving rise to prejudice" that is relevant for the purpose of compromising impartiality. Thus, without becoming incompatible.
The hypothesis recalled by the referral order (point 8.2), concerning the provision by which the preliminary investigation judge, seized of the request for dismissal, orders "further investigations" pursuant to Article 409, paragraph 4, of the Code of Criminal Procedure, does not appear equally analogous: in fact, this request for evidentiary integration is situated within the scope of control over the Public Prosecutor's inaction in a stage of marked fluidity of the accusation hypothesis, whereas in the case under examination by this Court, the "evidentiary" control concerns the exercise of the prevention action.
The hypothesis regulated by Article 421-bis, paragraph 1, of the Code of Criminal Procedure, which grants the judge of the preliminary hearing the power to indicate further investigations to the Public Prosecutor when they deem the investigations already carried out to be incomplete, appears instead more similar to the one under consideration: although the referral order considers the analogy only apparent, since the criminal proceedings always remain pending in the preliminary hearing stage, it can be observed that the return of the case file is precluded here by the principle of irrevocability of criminal action, so the preliminary hearing judge would have, as the only alternative to indicating "further investigations," the pronouncement of a judgment of non-lieu to proceed. Exactly as in the case of the prevention judge, who, in the absence of the norm that now allows the return of the case file for further investigations, should reject the seizure request and, subsequently, the confiscation. The analogy lies precisely in the fact that in both cases the judge "assesses" the sufficiency of the evidentiary platform after the initiation of criminal action (in the case of the preliminary hearing) or prevention action (in the case of the decision to return the case file by the court), while maintaining the non-replicability, in the prevention proceeding, of the stage sequences that exclusively characterize the structure of criminal proceedings.
6.2.– In addition to the single-stage nature of the prevention proceeding, it is also relevant for the purposes of this judgment that, based on the premise that the principles of fair trial applicable in prevention proceedings are those affirmed by the first two paragraphs of Article 111 of the Constitution, constitutional case law has modulated the recognition of guarantees also in relation to the diversity of the procedural model compared to the prototype of criminal proceedings. It has been observed, for example, that "[t]he respect for the principle of adversarial proceedings [...] 'does not require that it be carried out with the same modalities in every type of proceeding nor always and necessarily in the initial stage of the same, so that procedural models with eventual and deferred adversarial proceedings are not in contrast with Article 111, second paragraph, of the Constitution'" (thus, literally, Judgment No. 172 of 2023; among many, Judgment No. 115 of 2001 and Orders No. 255 of 2009, No. 291 of 2005, No. 352, No. 172 and No. 8 of 2003; more recently, Judgment No. 91 of 2023; similarly, with reference to the right to defense, Judgment No. 106 of 2015).
6.2.1.– Moreover, even the constitutional case law that has ruled on prevention measures has consistently highlighted the peculiarities of the prevention proceeding compared to the cognitive criminal trial.
With Judgment No. 106 of 2015, in particular, it was noted that "The prevention proceeding and the criminal proceeding, within whose framework the confiscation under Article 12-sexies of Decree-Law No. 306 of 1992 is applied, have their own peculiarities, both in the procedural aspect and in the substantial prerequisites [...] In this regard, this Court, in Order No. 275 of 1996, had occasion to emphasize 'the profound differences, procedural and substantive, between the criminal and prevention venues: the former connected to a specific criminal act subject to verification in the proceedings, following the initiation of criminal action; the latter referring to a comprehensive assessment of dangerousness, expressed through conduct that does not necessarily constitute a crime' [...]. The system of prevention measures therefore has its own autonomy and internal coherence, aiming to ascertain a hypothesis of dangerousness, which has relevance for both personal prevention measures and preventative confiscation."
Furthermore, Judgment No. 24 of 2019, in outlining a statute of guarantees, substantial and procedural, for prevention measures, underlined "the need for its application to be ordered following a proceeding that – while not necessarily having to conform to the principles that the Constitution and conventional law dictate specifically for criminal proceedings – must nevertheless respect the general canons of any 'fair' proceeding guaranteed by law (Articles 111, first, second, and sixth paragraphs, of the Constitution, and Article 6 ECHR, in its 'civil aspect'), ensuring in particular the full protection of the right to defense (Article 24 of the Constitution) of the person against whom the measure is requested."
7.– Having clarified the foregoing, it is nevertheless essential to point out that the indicated aspects of the peculiarity of the prevention proceeding are not, however, sufficient to found a reduction of the principle of impartiality, considering that Article 111, second paragraph, of the Constitution outlines the characteristics of any "fair trial," and therefore also of the prevention one. In other words: the requirement of impartiality of the prevention judge is supported by constitutional principles, which require the absence of prejudicial activity even in the face of the peculiarity of this proceeding.
Therefore, it is the identity of the stage in which the return of the case file to the proposing authority is ordered and the non-qualifiability of the related decision as "prejudicial activity" that are decisive for the negative resolution of the doubt of constitutional illegitimacy raised by the referring court.
7.1.– As already observed (supra, point 5), Article 20, paragraph 2, of Legislative Decree no. 159 of 2011 did not eliminate the investigation powers recognized to the court by the preceding Article 19, paragraph 5, with which the provision must therefore be coordinated. The supplementary investigatory powers of the court should therefore be reserved for hypotheses of marginal incompleteness capable of being remedied by the judicial body itself, while the return of the case file to the proposing authority should only be ordered in case of serious incompleteness of the investigations, capable of being remedied only by the proposing authority (equipped with the appropriate investigation and inquiry tools).
For these reasons, moreover, the power of return to the court is placed not only before the setting of the hearing but also before the adoption of the seizure measure or non-confiscatory measures, in a procedural sequence whose structure suggests not the hypothesis of accepting the measure request, but rather its rejection.
Therefore, a prejudicial situation in the assessment underlying the provision for the return of the case file does not appear conceivable, a provision which, by implying in reality a rejection for the time being due to the non-existence of the prerequisites for the precautionary measure, does not assume a prejudicial effect with respect to the subsequent adoption of the seizure (or another, non-confiscatory measure).
Moreover, the cited Article 20, paragraph 2, itself, by establishing that "further property investigations" may be ordered when they are "indispensable to assess the existence of the prerequisites" for the seizure or other non-confiscatory measures, appears to exclude an assessment of the existence of the prerequisites in the absence of further investigations. Consequently, rather than assessing the existence of the prerequisites, the court returning the case file assesses only the sufficiency of the acts. And this does not constitute a "prejudicial activity."
7.2.– A further systematic consideration should be added, namely that the judgment on real security has never been considered "prejudicial" in ordinary proceedings, as the case law of the Court of Cassation has constantly affirmed that the (physical) identity between the judge for the precautionary measure and the judge for the merits assessment, within the scope of the single function attributed at that stage, does not give rise to any situation of incompatibility arising from the acts performed in the proceedings (in this sense, most recently, Cass., united sections, no. 25951 of 2022).
for these reasons
THE CONSTITUTIONAL COURT
1) declares inadmissible the question of constitutional legitimacy of Article 37, paragraph 1, letter a), of the Code of Criminal Procedure, in relation to Article 36, paragraph 1, letter g), of the same Code, raised, in reference to Article 117, first paragraph, of the Constitution, in relation to Article 47 of the Charter of Fundamental Rights of the European Union, by the Court of Cassation, Sixth Penal Section, with the order indicated in the heading;
2) declares unfounded the questions of constitutional legitimacy of Article 37, paragraph 1, letter a), of the Code of Criminal Procedure, in relation to Article 36, paragraph 1, letter g), of the same Code, raised, in reference to Articles 24, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, by the Court of Cassation, Sixth Penal Section, with the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 23, 2025.
Signed:
Giovanni AMOROSO, President
Massimo LUCIANI, Rapporteur
Igor DI BERNARDINI, Chancellor
Filed in the Registry on December 5, 2025
The anonymized version conforms, in text, to the original