JUDGMENT NO. 190

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 review proceedings concerning Article 34, paragraph 2, of the Code of Criminal Procedure, initiated by the Preliminary Investigations Judge of the Ordinary Court of Macerata in the criminal proceedings against M. S., by order of July 4, 2024, registered under no. 161 of the register of orders 2024 and published in the Official Gazette of the Republic no. 37, special first series, of the year 2024.

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

having heard, in the private session of October 6, 2025, the Reporting Judge Maria Rosaria San Giorgio;

deliberated in the private session of October 6, 2025.

Facts Considered

1.– By order of July 4, 2024, registered under no. 161 of the register of orders 2024, the Preliminary Investigations Judge of the Ordinary Court of Macerata raised questions of constitutional legitimacy concerning Article 34, paragraph 2, of the Code of Criminal Procedure, with reference to Articles 3 and 111 of the Constitution, in so far as it "does not provide for the incompatibility to decide in the summary trial (giudizio abbreviato) of the judge who has previously admitted the accused to the probation process (messa alla prova), expressly stating in that context on the legal classification of the facts and reclassifying the originally charged offense into a different crime."

The referring judge states that he is called to judge, under the summary trial procedure, M. S., accused of the offense under Article 73, paragraphs 1 and 4, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Text of Laws on the Discipline of Narcotic Drugs and Psychotropic Substances, Prevention, Treatment, and Rehabilitation of Drug Addiction), for possessing, outside the home for the purpose of drug trafficking, 126.9 grams of hashish and 2.2 grams of cocaine.

The referring judge first notes that the accused, following the notification of the immediate judgment decree, had requested admission to the probation process, conditional upon reclassification of the alleged offense into the mitigating circumstance under Article 73, paragraph 5, of the aforementioned consolidated text, and, subordinately, that the trial be conducted through the summary trial procedure.

The same referring judge, having reclassified the original indictment as requested, ordered the suspension of the proceedings for probation but subsequently revoked it, as the accused, after declaring to the external penal execution office that he was no longer interested in the benefit, insisted on the conclusion of the proceedings through the summary trial procedure.

The referring judge, deeming this alternative procedure admissible, filed a request for abstention, "having previously determined in the MAP [probation] phase the traceability of the facts under Article 73, V DPR 309/90." The request was rejected by the delegated Section President on the grounds that it was a "[...] advanced decision in the same procedural phase and which in any case does not imply an in-depth evaluation of the merits of the accusation but only an assessment of the non-existence of grounds for acquittal pursuant to Article 129 of the Code of Criminal Procedure."

The Preliminary Investigations Judge (GIP) then urged a reassessment of this decision, highlighting that admission to the probation process had been ordered in a different phase and concerned, in addition to the non-existence of grounds for acquittal, the "traceability of the conduct under Article 73, V DPR 309/90." However, the order was confirmed.

1.1.– Given the above, the referring judge notes that the present case is not covered by the hypotheses of incompatibility provided for in Article 34, paragraph 2, of the Code of Criminal Procedure, nor does it constitute grounds for challenge (ricusazione). Furthermore, recourse to abstention would not be satisfactory, "as the self-assessment of one's professional capacity to not be influenced by judgments already formally rendered cannot be left to the discretion of the individual magistrate."

1.2.– In motivating the non-manifest groundlessness of the questions, the referring judge cites extensive excerpts from the judgment no. 16 of 2022 of this Court, by which the same Article 34, paragraph 2, of the Code of Criminal Procedure was declared constitutionally illegitimate, based on parameters partially coinciding with those invoked in the present proceedings, "insofar as it does not provide that the preliminary investigations judge, who has rejected the request for a penal decree of conviction due to the non-statement of an aggravating circumstance, is incompatible from ruling on the new decree request formulated by the public prosecutor in compliance with the judge's own observations."

In the passages referred to by the referring judge, this Court first recalled its case law according to which the rules on the incompatibility of a judge arising from acts performed during the proceedings are intended to protect the values of third-partyness and impartiality of the judiciary, safeguarded by Articles 3, 24, second paragraph, and 111, second paragraph, of the Constitution, as they aim to prevent the decision on the merits of the case from "being or appearing conditioned by the force of prejudice [...] arising from assessments which the judge was previously called upon to make regarding the same *res iudicanda*."

It was then observed, inter alia, in the judgment cited by the referring judge that incompatibility "presupposes a relationship between two terms: a 'source of prejudice' (i.e., a judicial activity capable of generating the force of prejudice) and a 'prejudiced forum' (i.e., a decision-making task, for which the judge who performed the prejudicial activity is no longer fit)" (Judgment no. 16 of 2022, point 4.2 of the grounds for consideration).

It was further clarified that "judgment" should be understood as any proceeding that, based on an examination of the evidence, reaches a decision on the merits: this concept includes, in addition to the trial phase, the summary trial, the plea bargain, and the preliminary hearing.

In the passages of judgment no. 16 of 2022 cited by the referring judge, it was then argued that, for the provision of judge incompatibility to be deemed constitutionally necessary, the element of the pre-existence of assessments on the same *res iudicanda* instrumental to reaching a decision must be present, the mere knowledge of previously performed acts not being sufficient. Furthermore, the prejudicial ruling must be substantive, not merely formal, in the sense that it must be based on assessments concerning the merits of the accusation, and not on the mere conduct of the proceedings. Finally, the prior assessment must occur in a different phase of the proceedings, as within each phase, the "need for continuity and globality" must be preserved.

Therefore, the judge does not incur incompatibility when performing "preliminary assessments, even on the merits, intended to lead to the final decision, otherwise resulting in an 'absurd fragmentation' of the proceedings, which would imply the necessity of having as many different judges as there are acts to perform for the same phase of the trial (Judgments no. 153 of 2012 and no. 131 of 1996)" (Judgment no. 16 of 2022 is cited again).

1.3.– The referring judge, "taking into account the indications" provided by the aforementioned ruling, deduces that the decision he is called to make under the summary trial procedure would not only constitute a judicial function but would be prejudiced by the "previous determinations already made," which, concerning the reclassification of the charged facts, "fall upon the same *res iudicanda*."

The reclassification carried out would, in fact, contain an assessment of the accusation "instrumental to reaching a decision," such as the one on probation, which, in the present case, could not have been admitted in relation to the originally charged facts.

According to the referring judge, this order was issued in a procedural phase different from the one in which he is required to rule.

In fact, a unity of phase cannot be configured "merely because the issuance of an immediate judgment decree, with a request for alternative procedures, has generally occurred," since a first phase concerning the probation procedure, concluded with the revocation of the admission order, was followed by another, entirely autonomous and separate phase from the first, in which the trial must be handled under the summary trial procedure.

The constitutional legitimacy questions raised are, finally, "evidently relevant," as the referring judge himself must determine whether he "can/must treat and decide the summary trial requested by the defense following the revocation of the probation," given that his request for abstention was rejected in the absence of an express provision of incompatibility for the specific case.

2.– By a brief filed on September 30, 2024, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, requesting that the questions raised be declared inadmissible and, in any case, unfounded.

2.1.– Regarding the first point, the State defense contends, first of all, that the reasoning of the referring order is tautological, merely asserting that the decision on probation underlies assessments pertaining to the legal classification of the charged facts and, therefore, to the accusation itself.

The arguments put forward by the referring judge also appear contradictory, since the legal reclassification of the charged facts carried out would not actually involve assessments on the merits of the disputed matter, but would be "the result of an abstract judgment of a logical-legal nature, consisting in subsuming the fact described in the indictment under the correct penal norm."

Moreover, the reconstruction of the relevant legal and jurisprudential framework and the reasoning on the non-manifest groundlessness are lacking.

The constitutional legitimacy questions would, finally, be inadmissible due to a "complete lack of reasoning for the challenges referred to Articles 3 and 111 of the Constitution."

2.2.– In the view of the intervening party, the questions are, in any case, unfounded.

Citing the conditions that, according to the case law of this Court, must be met for a "prejudicial activity" to be established, the State defense asserts that, in the present case, both the instrumental nature of the assessment for the purpose of reaching a decision and its relevance to the merits of the accusation are lacking.

The verification of the absence of conditions for an acquittal ruling pursuant to Article 129 of the Code of Criminal Procedure cannot, in fact, be equated with the positive ascertainment of the non-existence of the relevant prerequisites, nor does the legal reclassification of the facts constitute a merits assessment of the foundation or lack thereof in the accusation.

The core of the challenges raised by the referring judge concerns, moreover, the "formal or substantive" nature of the assessment expressed through the admission order for the probation process and, specifically, its "prejudicial force."

The conditioning effect should, in this case, be excluded, since, when ruling on probation, the judge must verify the correctness of the legal classification of the facts made by the prosecution and possibly amend it (citing the judgment of the Court of Cassation, Fourth Criminal Section, May 8 - July 31, 2018, no. 36752).

Neither this assessment, nor the verifications concerning the non-existence of grounds for acquittal pursuant to Article 129 of the Code of Criminal Procedure, as well as the suitability of the treatment program and the favorable prognosis of non-recidivism for the interested party, affect the impartiality of the judge (citing the judgment of the Court of Cassation, Third Criminal Section, January 20 - April 11, 2016, no. 14750).

It is also recalled that, according to the case law of the Court of Cassation, the acquittal judgment following the positive outcome of the probation process is incapable of expressing a complete finding on the merits of the accusation and responsibility (citing the judgment of the Court of Cassation, Fourth Criminal Section, July 9-24, 2019, no. 33260).

Finally, the intervening party contests the assertion that in the trial under review the decision deemed prejudicial was rendered in a phase different from the one in which the referring judge is called to rule on the merits, since "the qualification in terms of different phases or stages poorly fits the assessment of the transition from one special procedure to another."

Grounds for Consideration

1.– The GIP of the Court of Macerata doubts the constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, in so far as it "does not provide for the incompatibility to decide in the summary trial of the judge who has previously admitted the accused to the probation process, expressly stating in that context on the legal classification of the facts and reclassifying the originally charged offense into a different crime."

1.1.– Although not specified in the referring order, it clearly emerges from the overall tenor of the arguments that the subject of the challenge is the "horizontal" incompatibility rule, pursuant to paragraph 2 of Article 34 of the Code of Criminal Procedure, i.e., the incompatibility relating to the relationship between one phase of the trial and the preceding one (inter alia, Judgments no. 93 and no. 74 of 2024, no. 16 of 2022).

1.2.– The referring judge believes, first of all, that the decision on the request for suspension with probation is located in a distinct and autonomous phase from that, dedicated to the summary trial proceedings, in which he is called to rule.

Secondly, he assumes that the correct legal classification of the charged facts, carried out for the purposes of the ruling under Article 464-quater of the Code of Criminal Procedure, is an expression of a discretionary power that touches upon the merits of the accusation, thus exerting a prejudicial effect on the decisions to be made in the subsequent phase.

Ultimately, in the view of the referring judge, in the admission proceedings for probation, the judge who reclassifies the original indictment makes a substantive, not merely formal, assessment of the case, thereby becoming incompatible from performing acts in the subsequent procedural phase.

The failure to provide for the judge's incompatibility in the considered case would conflict with Articles 3 and 111 of the Constitution, as the reclassification of the original indictment, on the one hand, would entail an assessment that falls upon the same *res iudicanda* and is instrumental to reaching a decision, such as the one on the admissibility of probation; on the other hand, it would imply a merits assessment of the accusation.

2.– Preliminarily, the exceptions of inadmissibility raised by the President of the Council of Ministers must be examined.

They are unfounded.

2.1.– Contrary to what is asserted by the intervening party, the reasoning regarding the non-manifest groundlessness is neither tautological nor contradictory.

From the overall tenor of the albeit concise arguments developed in the referring order, the reasons for the suspicion of constitutional illegitimacy emerge with sufficient clarity: the referring judge, on the one hand, assumes that the legal reclassification of the facts carried out for the purpose of admitting the benefit under Article 168-bis of the Penal Code constitutes an assessment of the merits of the accusation capable of prejudicing subsequent judicial activity; on the other hand, he holds that, after the notification of the immediate judgment decree, the request for probation introduces a procedural phase distinct and separate from the subsequent one, in which the preliminary investigations judge is called to rule under the summary trial procedure.

2.1.1.– The exception of inadmissibility for the omission of the reconstruction of the relevant legal and jurisprudential framework is also unfounded.

As repeatedly stated by this Court, the analysis of the legal and jurisprudential framework in which the contested provision is situated is relevant, for the admissibility of the questions, only if it is lacking and such as to vitiate the clarity of the logical and argumentative path (inter alia, Judgments no. 38 of 2025, no. 228 of 2023, no. 194 of 2021).

In the present case, the essential core of the challenges – which contest the constitutional illegitimacy of the failure to provide for the incompatibility of the judge who has expressed an opinion on the case by reclassifying the facts for the purpose of the probation decision – is nonetheless outlined in adequately defined terms.

The reconstruction made in the referring order therefore does not compromise the intelligibility of the logical path followed by the referring judge.

2.1.2.– Finally, the exception of inadmissibility for the failure to indicate the reasons why Articles 3 and 111 of the Constitution are deemed violated is also without merit.

From the overall tenor of the referring order, it is in fact clear that these constitutional parameters – although formally indicated only in the operative part – were invoked as safeguards of the values of impartiality and third-partyness of the judge, to the protection of which, as repeatedly stated by this Court, the rule of incompatibility under challenge is directed (inter alia, Judgments no. 182 of 2025, no. 93 and no. 74 of 2024, no. 64 and no. 16 of 2022).

Moreover, these are parameters partially coinciding with those against which Article 34, paragraph 2, of the Code of Criminal Procedure itself was scrutinized in the aforementioned Judgment no. 16 of 2022, which the referring judge clearly shows adherence to (Judgment no. 88 of 2018).

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

3.1.– According to the constant case law of this Court, the relevant incompatibility rule finds its *ratio* in the safeguarding of the values of third-partyness and impartiality of the judge, protected by Article 111, second paragraph, of the Constitution, being intended to prevent him from ruling when conditioned by the "force of prejudice" – i.e., "the tendency to confirm a decision or maintain an attitude already adopted, arising from assessments he was previously called upon to make regarding the same *res iudicanda*" – and to ensure "that the judging functions are assigned to a 'third' subject, free from private interests that might obscure the rigorous application of the law and also free from preconceived convictions regarding the matter on which he is ruling" (Judgment no. 93 of 2024; in the same sense, inter alia, Judgments no. 182 of 2025, no. 74 of 2024, no. 172 of 2023 and previous ones cited therein).

3.1.1.– The principle of judicial impartiality is also found in the supranational legal system, since Article 6, paragraph 1, of the European Convention on Human Rights establishes that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal," and Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to have one's case examined by an "independent and impartial judge, established by law."

3.2.– With reference to the so-called "horizontal" incompatibility, which is relevant in the present case, this Court has repeatedly affirmed that it presupposes a relationship between a "source of prejudice," coinciding with a judicial activity capable of generating the force of prejudice, and a "prejudiced forum," identifiable in a decision-making task for which the judge who performed the prejudicial activity is no longer fit (inter alia, Judgments no. 182 of 2025, no. 74 of 2024, no. 172 of 2023, no. 64, no. 16 and no. 7 of 2022).

For this form of incompatibility to be deemed to exist, however, the mere knowledge by the judge of previously performed acts is not sufficient; rather, it is necessary that he has carried out an assessment of these acts that is instrumental to reaching a decision.

The latter must then be substantive, not merely formal, in the sense that it must imply assessments related to the merits of the accusation and not to the mere conduct of the proceedings.

Finally, for an intra-procedural incompatibility of constitutional relevance to arise, the preceding assessment must be located in a different phase of the proceedings (again, inter alia, Judgments no. 182 of 2025, no. 93 and no. 74 of 2024, no. 172 of 2023 and no. 64 of 2022).

3.2.1.– Regarding this latter point, this Court, with consistent direction, has affirmed that "[i]t is entirely reasonable [...] that, within each of the phases – understood as ordered sequences of acts that may involve incidental assessments, even on the merits, of what is found therein, preliminary to the final decision – the requirement of continuity and globality remains, in any case, preserved, otherwise resulting in an absurd fragmentation of the proceedings, which would imply the necessity of having, for the same phase of the trial, as many different judges as there are acts to perform (ex plurimis, Judgments 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, no. 232 of 1999)" (Judgment no. 18 of 2017).

Therefore, it must be excluded that a constitutional incompatibility can be configured within the same procedural phase: the trial is, by its nature, composed of a sequence of acts, each of which can abstractly imply assessments on what affects its outcomes, so that, if every act containing a decision capable of manifesting an assessment within the same phase were to be isolated, the unity of the trial would be irremediably compromised.

In this regard, this Court recently noted that, since it is a matter of common experience that the judicial ruling, like any decision-making process, matures *in itinere*, incompatibility (but the same applies to abstention and challenge) cannot operate in relation to acts taken within the same procedural phase – as a fraction of the decision-making path in which "the phenomenon of the progressive formation of the judge's conviction is accomplished with peculiar concentration" – otherwise resulting in "the absolute impossibility of the functioning of the jurisdiction" (again, Judgment no. 182 of 2025).

3.3.– In the specific case of the order suspending the proceedings with probation, which is relevant in the case under examination today, this Court has excluded that the requirement of a different phase is met where the request for this benefit has been rejected before the opening of the trial (again, Judgment no. 64 of 2022).

In the proceedings concluded with the judgment just cited, the referring judges had found in the order under Article 464-quater, paragraph 1, of the Code of Criminal Procedure an in-depth assessment of the merits of the accusation.

This Court has, however, clarified that, regardless of the validity of this assumption, the referring judges had overlooked an "essential particular": the decision identified as the source of prejudice "is located, not in a previous and distinct procedural phase, but in the same phase – the trial phase – with respect to which the invoked prejudicial effect should be realized; which fundamentally excludes, in light of the constant case law of this Court, the configuration of a situation of constitutionally necessary incompatibility" (Judgment no. 64 of 2022, point 5.2 of the grounds for consideration).

3.3.1.– The case law of the Court of Cassation has also excluded that the order rejecting the request for suspension of proceedings with probation determines the incompatibility of the judge in the trial that continues under ordinary procedures, this being a decision adopted in the same procedural phase that does not imply an assessment of the merits of the accusation, but exclusively an assessment of the non-existence of grounds for immediate acquittal pursuant to Article 129 of the Code of Criminal Procedure, as well as a verification of the suitability of the treatment program and a favorable prognosis of non-recidivism (again, Cass. no. 33260 of 2019).

3.4.– Given the above, in the main proceedings, the accused, following the notification of the immediate judgment decree, requested admission to the probation process and, subordinately, to the summary trial.

The referring judge, having initially accepted the request under Article 168-bis of the Penal Code, following the reclassification of the indictment, and subsequently revoked it following the accused's waiver, is now called upon to rule under the summary trial procedure.

The referring judge himself believes that the decision he is entrusted with is located in a phase distinct and autonomous from that in which he made the ruling deemed prejudicial, namely the different classification of the charged facts.

3.4.1.– This assumption cannot be shared.

The decision on the request for probation is not located in a preceding and distinct procedural phase, but in the same phase – that of the anticipatory conclusion of the immediate judgment through alternative procedures to the trial – in which, in this case, the judgment must be rendered under the summary trial procedure, so that the supposed effect of prejudice cannot arise.

3.4.2.– The procedural juncture that opens with the introduction of the request for alternative procedures – namely, the summary trial, plea bargain, and probation – onto the immediate judgment initiated by the public prosecutor can lead to the anticipatory conclusion of the trial through special decision-making modalities.

This phase, for which the GIP is invested with specific functional competence (Court of Cassation, United Criminal Sections, Judgment of January 17-25, 2006, no. 3088), can conclude either with a judgment that prematurely terminates the proceedings (the judgment applying the sentence upon request of the parties, the conviction or acquittal judgment following the summary trial, or the acquittal judgment for the extinction of the crime, in the event of a positive outcome of the probation process), or with an order transmitting the acts to the trial judge, should none of the requests for alternative procedures be accepted or successful (Art. 458, paragraph 2-ter, Code of Criminal Procedure).

Only in the latter event does the distinct trial phase commence before a different judge.

3.4.3.– The unitary character of the procedural juncture under review was emphasized by the amendments made to its regulation by Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government for the efficiency of the criminal trial, as well as on matters of restorative justice and provisions for the speedy conclusion of judicial proceedings).

The abolition of the GIP's power under the previous regulation to *de plano* assess the request for alternative conclusion and the placement of this assessment in a specific hearing where the accused is allowed to amend the originally chosen option, on the one hand, aims to favor access to special procedures and the anticipatory conclusion of the immediate judgment; on the other hand, it identifies a specific procedural forum in which the judge can examine, in a single decision-making context, the requests made by the accused.

The teleological affinity between the special proceedings that can be grafted onto the immediate judgment, the provision, by the reformed Articles 458, paragraph 2, and 458-bis, paragraph 1, of the Code of Criminal Procedure, for a specific hearing in which these forms of alternative conclusion can also be tested subsequently, and the attribution to the GIP of specific functional competence, serve to configure the procedural moment under review as a structurally and functionally unitary articulation.

3.5.– In the decision-making context under review, the assessments expressed in relation to the request for a special procedure that does not lead to the conclusion of the trial cannot be considered a "source of prejudice" for the decision, in the same context, on the request for another special procedure.

The decision on probation taken by the referring judge is therefore located in the same phase of the anticipatory conclusion of the immediate judgment through alternative procedures to the trial in which the referring judge himself is now called to rule under the summary trial procedure.

This fundamentally prevents finding a constitutional incompatibility, irrespective of the scope of the ruling deemed prejudicial in this case, namely the legal reclassification of the facts carried out for the purpose of the decision on probation.

Furthermore, it should be noted that, according to the case law of the Court of Cassation, this different classification does not imply an assessment of the merits of the accusation, but is "limited to evaluating the correctness of the framing of the conduct described in the indictment within the abstract hypothesis indicated by the public prosecutor" (Court of Cassation, Second Criminal Section, Judgment of October 25 - November 19, 2018, no. 52088).

4.– The questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure must, therefore, be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 34, paragraph 2, of the Code of Criminal Procedure, raised, with reference to Articles 3 and 111 of the Constitution, by the Preliminary Investigations Judge of the Ordinary Court of Macerata, with the order indicated in the heading.

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

Signed:

Giovanni AMOROSO, President

Maria Rosaria SAN GIORGIO, Rapporteur

Roberto MILANA, Clerk Director

Filed in the Clerk's Office on December 18, 2025

 

The anonymized version conforms, in text, to the original