JUDGMENT NO. 191
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President:
Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has rendered the following
JUDGMENT
in the constitutional legitimacy proceedings regarding Article 168-bis, first paragraph, of the Penal Code, initiated by the Preliminary Hearing Judge of the Ordinary Court of Cagliari, in the criminal proceedings against S. S., by order of November 28, 2024, registered under no. 1 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 4, special first series, of the year 2025.
Having reviewed the memorandum of intervention by the President of the Council of Ministers;
heard in the advisory session of November 17, 2025, the Reporting Judge Francesco Saverio Marini;
deliberated in the advisory session of November 17, 2025.
Facts Considered
1.– With an order dated November 28, 2024 (reg. ord. no. 1 of 2025), the Preliminary Hearing Judge of the Ordinary Court of Cagliari raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy concerning Article 168-bis, first paragraph, of the Penal Code, insofar as it "does not allow the suspension of proceedings with probation for the crime of negligent arson of forests pursuant to Article 423-bis, second paragraph, of the Penal Code.”
The referring judge reports that they are proceeding, at the preliminary hearing stage, against S. S. for the crime of negligent arson of forests "caused by a stove carelessly left lit and unsupervised for a few minutes” and must decide on the request for suspension of proceedings with probation submitted by the defendant.
2.– In the opinion of the referring judge, the question of constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code is relevant in the present proceedings, as the conditions for ordering probation are met. However, the aforementioned Article 168-bis limits the operation of the institute in question to cases where proceedings are brought "for offenses punishable only by a pecuniary penalty or by a maximum principal custodial penalty not exceeding four years, alone, combined or in lieu of a pecuniary penalty, as well as for the crimes indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure”; whereas negligent arson of forests is punishable by a maximum penalty of five years' imprisonment and does not fall within the category of offenses to which direct summons to trial procedure applies, pursuant to the aforementioned paragraph 2 of Article 550. This precludes the granting of probation.
3.– Regarding the non-manifest groundlessness, the referring judge holds that Article 168-bis, first paragraph, of the Penal Code violates Article 3 of the Constitution in terms of irrationality.
The reference made by the contested provision to Article 550, paragraph 2, of the Code of Criminal Procedure "[causes] access to the institute to be permitted for more serious intentional crimes, for minimum and maximum penalty limits, for negligent offenses […] which do not allow the suspension of proceedings with probation.”
This effect, however, "does not derive from the legislator’s discretionary evaluations regarding the specific crime,” but from the application of a criterion, that of procedural ascertainment, which is "external to the rationale for admissibility or otherwise of probation,” which should be based on the seriousness of the crime.
Moreover, Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the speedy resolution of judicial proceedings) significantly broadened the catalogue of offenses under Article 550, paragraph 2, of the Code of Criminal Procedure, including intentional criminal offenses characterized by the "simplicity of procedural ascertainment” and punishable by a maximum principal penalty of up to six years' imprisonment.
The same decree, however, did not implement the legislative delegation where it provided for the extension of the scope of application of probation to crimes which, despite being punishable by a maximum penalty exceeding four years' imprisonment and not being included in the cases of "direct summons” to trial, "lend themselves to resocializing or reparative paths.”
In conclusion, in the opinion of the referring judge, the "rationality of excluding a crime such as the one under examination from the institute, which falls within the six-year penalty limit and which certainly lends itself to resocializing or reparative paths, primarily due to its negligent nature,” is questionable.
4.– The referring judge believes, instead, that there are "no grounds for transmitting the documents to the Constitutional Court in relation to [the standard] of the rehabilitative purpose of the penalty,” as the analogous complaint has already been declared unfounded by Judgment no. 146 of 2023.
5.– The President of the Council of Ministers intervened in the proceedings by a memorandum filed on February 11, 2025, represented and defended by the State Attorney's Office, which requested that the question be declared inadmissible or, in any event, unfounded.
According to the State defense, the question would be inadmissible for several reasons.
Firstly, the *petitum* of the referral order is "inconsistent with the grounds” thereof, as the question was raised solely with reference to Article 3 of the Constitution, despite the challenge being based on a "defect due to non-observance, by a decree under Article 76 of the Constitution, of the enabling law.”
Secondly, there is a lack of reasoning regarding the non-manifest groundlessness. The referring judge, in fact, denounces the irrationality of the legislative choice not to allow access to probation for the crime of negligent arson of forests, "since some more serious crimes [do] allow it,” without considering that the contested provision itself employs, for delimiting the scope of operation of the institute, not only the criterion of the seriousness of the crimes, but also that of the "nature (tending to be non-complex) of the related proceedings.”
Finally, the assertion of a violation of Article 3 of the Constitution is not "accompanied by the necessary identification of a *tertium comparationis*.” The referring judge, in fact, "does not offer any example of a crime which, conversely, is included in the list under Article 550, para. 2, of the Code of Criminal Procedure and is characterized by homogeneous criminal disvalue.”
6.– The question raised would, in any case, be manifestly unfounded for several reasons.
Firstly, the referring judge "seeks judicial review […] regarding the appropriateness of the choices made by the Legislator,” which appear, instead, to be "reasoned and reasonable.”
Secondly, Article 168-bis, first paragraph, of the Penal Code, in referring to Article 550, paragraph 2, of the Code of Criminal Procedure, intended "to establish a tendency towards parallelism between trials assigned to the Court in its single-judge composition and those for which suspension with probation is permitted.” This would be "a legislative choice that is not only not manifestly irrational but, on the contrary, reasoned and well-considered,” also in terms of "efficiency of justice.”
Furthermore, the penalty framework is not the sole indicator of the seriousness of crimes, with the consequence that their treatment can be differentiated even with the same penalty, for instance, "by limiting the benefits that defendants or convicted persons […] may obtain.” The referring judge would not, therefore, have considered that "arson of forests, even if negligent, is a criminal act gravely offensive […] of the protected legal interest of the environment” and raises particular social alarm in this historical moment.
Moreover, the referring judge has not "deduced or considered (apart from the aspect of the penalty framework) the peculiarities of the crime of negligent arson of forests,” limiting himself to asserting that there are crimes more serious than this one in the list under Article 550, paragraph 2, of the Code of Criminal Procedure.
Considerations in Law
1.– With the order indicated in the heading (reg. ord. no. 1 of 2025), the Preliminary Hearing Judge of the Court of Cagliari doubts the constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, insofar as it "does not allow the suspension of proceedings with probation for the crime of negligent arson of forests pursuant to Article 423-bis, second paragraph, of the Penal Code.”
In the opinion of the referring judge, Article 3 of the Constitution is violated under the aspect of irrationality.
Article 168-bis, first paragraph, of the Penal Code, in fact, delimits the scope of application of suspension with probation both by referring to the maximum statutory penalty for the crime being prosecuted ("maximum custodial penalty not exceeding four years,” in addition, possibly, to only a pecuniary penalty) and by referring to Article 550, paragraph 2, of the Code of Criminal Procedure; this provision contains a list of offenses—to which the special procedure of direct summons to trial applies—punished with a penalty exceeding the threshold set by the aforementioned Article 168-bis ("maximum custodial penalty not exceeding four years, alone, combined or in lieu of a pecuniary penalty”). This list, moreover, was expanded by Legislative Decree no. 150 of 2022, which included intentional criminal offenses characterized by the "simplicity of procedural ascertainment,” but punishable by a maximum statutory penalty of up to six years' imprisonment.
The "adopting reference of Article 168-bis of the Penal Code” to Article 550, paragraph 2, of the Code of Criminal Procedure—the referring judge continues—"[has] caused access to the institute to be permitted for more serious intentional crimes, for minimum and maximum penalty limits, for negligent offenses […] which do not allow the suspension of proceedings with probation,” even though they lend themselves "to resocializing or reparative paths, [precisely] due to their negligent nature.” And this effect "does not derive from the legislator’s discretionary evaluations regarding the specific crime,” but from the application of a criterion, that of procedural ascertainment, which is "external to the rationale for admissibility or otherwise of probation,” which should be based on the seriousness of the crime.
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, which pleaded the inadmissibility of the question on three different grounds.
2.1.– Firstly, the *petitum* of the referral order is "inconsistent with the grounds” thereof, as the question was raised solely with reference to Article 3 of the Constitution, despite the challenge being based on a "defect due to non-observance, by a decree under Article 76 of the Constitution, of the enabling law.”
The objection is unfounded.
The referring judge complains about the intrinsic irrationality of Article 168-bis, first paragraph, of the Penal Code and for this reason invokes Article 3 of the Constitution as the standard for the constitutional legitimacy review.
The referral order does not, in fact, allege a defect in the implementation of the legislative delegation and, therefore, a violation of Article 76 of the Constitution, but refers to the expansion of the catalogue of cases of "direct summons” to trial by Legislative Decree no. 150 of 2022 and the consequent expansion of the scope of application of probation only to argue the alleged irrationality of the system outlined by the legislator, which would have been "aggravated” by the reform in question.
2.2.– Secondly, the question would be inadmissible due to lack of reasoning regarding non-manifest groundlessness. The referring judge, in fact, allegedly complained about the irrationality of the legislative choice not to allow access to probation for the crime of negligent arson of forests, "since some more serious crimes [do] allow it,” without considering that the contested provision itself employs, for delimiting the scope of operation of the institute, not only the criterion of the seriousness of the crimes, but also that of the "nature (tending to be non-complex) of the related proceedings.”
The objection is unfounded.
The referring judge denounces the irrationality of the contested provision insofar as it does not allow access to probation for negligent arson of forests, because said crime, precisely due to its negligent nature, lends itself to resocializing or reparative paths. Furthermore, the application of the institute would be admissible "for more serious intentional crimes, for minimum and maximum penalty limits,” as they are included in the catalogue of cases of "direct summons” to trial under Article 550, paragraph 2, of the Code of Criminal Procedure, to which Article 168-bis, first paragraph, of the Penal Code refers to delimit the scope of application of probation.
With this twofold argument, the referring judge identifies, with sufficient specificity and with reasoning capable of passing the admissibility review, the reasons for the alleged violation.
2.3.– Finally, according to the State defense, the assertion of a violation of Article 3 of the Constitution is not "accompanied by the necessary identification of a *tertium comparationis*”: the referring judge, in fact, "has not offered any example of a crime which, conversely, is included in the list under Article 550, para. 2, of the Code of Criminal Procedure and is characterized by homogeneous criminal disvalue.”
This objection is also unfounded, as, already highlighted, the referring judge invokes Article 3 of the Constitution as the standard for the constitutional legitimacy review, not under the aspect of unequal treatment compared to a homogeneous offense, but under that of the intrinsic irrationality of the contested provision.
3.– On the merits, the question is unfounded.
3.1.– In the opinion of the referring judge, Article 168-bis, first paragraph, of the Penal Code—insofar as it does not allow the suspension of proceedings with probation for the crime of negligent arson of forests (Article 423-bis, second paragraph, of the Penal Code)—violates Article 3 of the Constitution: the "rationality of excluding a crime such as the one under examination from the institute, which falls within the six-year penalty limit and which certainly lends itself to resocializing or reparative paths, primarily due to its negligent nature,” would indeed be questionable; this is also because the "adopting reference [of the aforementioned] Article 168-bis of the Penal Code [to Article 550, paragraph 2, of the Code of Criminal Procedure] has caused access to the institute to be permitted for more serious intentional crimes, for minimum and maximum penalty limits.”
3.2.– As is known, Article 168-bis, first paragraph, of the Penal Code delimits the scope of application of the suspension of proceedings with probation both by referring to the penalty limit for the crime being prosecuted ("maximum custodial penalty not exceeding four years,” in addition, possibly, to only a pecuniary penalty), "and by making a dynamic reference to all the offenses indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure” (Judgment no. 139 of 2025), the list of which "has been enriched with numerous offenses, all punished on average with a maximum statutory penalty of five years' imprisonment, sometimes even six years; therefore, exceeding the threshold of four years set out in [the same Article] 168-bis, first paragraph” (Judgment no. 146 of 2023).
In this regard, this Court "has repeatedly recognized the legislator’s ‘wide discretion in defining the objective limits’ – for example, related to penalty limits or to ‘specific types of crimes (identified by name or, as in this case, by reference to a category defined by another provision)’ – within which non-punitive criminal law instruments can find application, provided that the legislative choice does not prove manifestly irrational, creating unsustainable disparities of treatment (thus, most recently, Judgment no. 139 of 2025)” (Judgment no. 157 of 2025).
Therefore, the circumstance—denounced by the referring judge—that "access to the institute [of probation is] permitted for more serious intentional crimes, for minimum and maximum penalty limits,” does not imply a violation of Article 3 of the Constitution.
It is, in fact, part of the very logic of the technique of dynamic reference to Article 550, paragraph 2, of the Code of Criminal Procedure—a "common technique in the structure of the Penal Code” (Judgment no. 139 of 2025)—that probation may be permitted for criminal offenses whose maximum statutory penalty exceeds the threshold established by the aforementioned Article 168-bis.
The determination of the objective limits of application of the suspension of proceedings with probation, "through the dynamic reference to all the offenses indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure” (Judgment no. 139 of 2025), is thus an expression of a criminal policy choice that is intrinsically not manifestly irrational (Judgments no. 157 and no. 139 of 2025, and no. 146 of 2023).
As just noted, in fact, this Court has already clarified that it is within the wide discretion of the legislator to use "[t]he technique of identifying (by name, or through reference to other provisions [in this case, Article 550, paragraph 2, of the Code of Criminal Procedure itself] of crimes included in [probation]” (Judgment no. 139 of 2025), also because "it is part of the logic of the criminal system that, when adopting diversified solutions, certain statutory limits, indicative of the abstract seriousness of the crimes, or certain types of crimes (Judgment no. 207 of 2017), are taken into consideration.”
3.3.– Nor can the alleged irrationality be inferred from the negligent nature of the crime of arson of forests.
The referring judge proceeds from the assumption that a negligent crime lends itself, *per se*, to paths of resocialization of the offender—which he identifies as the sole rationale for probation—with the logical consequence that all negligent offenses, and not only arson of forests, should fall within the scope of application of the institute.
However, while it is true that the institute in question pursues resocializing aims and negligence constitutes one of the elements that the legislator may consider when setting its scope of application, it must be noted, on the one hand, that probation also pursues punitive and deflationary aims; and, on the other hand, that—as this Court has repeatedly affirmed—the legislator, in its broad discretion, may well evaluate, in addition to the subjective element, other factors, such as the protected legal interest, the incriminated conduct, or the sanctioning treatment. Furthermore, the very importance assigned by the legislator here to the subjective element of negligence attests to the importance of the protected legal interest.
4.– The foregoing does not absolutely preclude the possibility that the legislative technique of referring to a provision that governs a different institute might, in some cases, create "unsustainable disparities of treatment” or lead to "manifestly disproportionate results” with respect to specific types of offenses (always, Judgment no. 139 of 2025), which are admitted to or excluded from probation in a manifestly incongruous manner with respect to the achievement of the "resocializing aims, on the one hand, and deflationary aims, on the other,” proper to the institute (Judgment no. 90 of 2025).
It must be reiterated, in fact, that "the types of offenses […] listed in Article 550, paragraph 2, of the Code of Criminal Procedure, to which, as stated, Article 168-bis of the Penal Code refers […] present elements of considerable heterogeneity, to the extent that it is problematic to identify a single and coherent guiding rationale” (Judgment no. 157 of 2025) and are, in any case, identified to delimit the scope of application of a procedural institute—the special procedure of direct summons to trial—having a nature and function not overlapping with those underlying probation.
This Court can remedy any systemic disharmonies arising from this technique for identifying the crimes included in probation, as already occurred with Judgment no. 90 of 2025, by evaluating in concrete terms whether the crime excluded from the scope of application of the institute and subject to its review deserves to be included, by virtue of its structure and legal objectivity, and also through a comparative analysis with the criminal offenses included in the list under Article 550, paragraph 2, of the Code of Criminal Procedure.
However, with the present question, the referring judge has not called this Court to such a concrete evaluation with reference to the specific criminal offense under its examination, but has challenged, in abstract and general terms, the constitutional legitimacy of the technique of dynamic reference to the aforementioned paragraph 2 of Article 550 of the Code of Criminal Procedure; which—as already highlighted—constitutes a legitimate exercise of the legislator’s discretion in determining the objective limits of the application of the suspension of proceedings with probation.
for these reasons
THE CONSTITUTIONAL COURT
declares the question of constitutional legitimacy of Article 168-bis, first paragraph, of the Penal Code, raised with reference to Article 3 of the Constitution by the Preliminary Hearing Judge of the Ordinary Court of Cagliari with the order indicated in the heading, unfounded.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on November 17, 2025.
Signed:
Giovanni AMOROSO, President
Francesco Saverio MARINI, Rapporteur
Roberto MILANA, Head of the Registry
Filed in the Registry on December 19, 2025
The anonymized version is textually compliant with the original