ORDER NO. 192
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, 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 issued the following
ORDER
in the constitutional legitimacy judgment concerning Article 69, fourth paragraph, of the Penal Code, as substituted by Article 3 of Law No. 251 of December 5, 2005 (Amendments to the Penal Code and Law No. 354 of July 26, 1975, regarding general mitigating circumstances, recidivism, the comparison judgment of crime circumstances for recidivists, usury, and prescription), initiated by the Judge of the Preliminary Hearing of the Ordinary Court of Parma, in the criminal proceedings against E. Y.M.T.M., by Order of October 8, 2024, registered under no. 248 of the 2024 register of orders and published in the Official Gazette of the Republic no. 4, special series first issue, of 2025, the hearing of which was set for the in-chambers deliberation of December 1, 2025.
Having reviewed the submission of the Prime Minister;
having heard in the in-chambers deliberation of December 2, 2025, the Reporting Judge Francesco Saverio Marini;
deliberated in the in-chambers deliberation of December 2, 2025.
Whereas, by Order of October 8, 2024 (reg. ord. no. 248 of 2024), the Judge of the Preliminary Hearing of the Ordinary Court of Parma raised questions of constitutional legitimacy regarding Article 69, fourth paragraph, of the Penal Code, as substituted by Article 3 of Law No. 251 of December 5, 2005 (Amendments to the Penal Code and Law No. 354 of July 26, 1975, regarding general mitigating circumstances, recidivism, the comparison judgment of crime circumstances for recidivists, usury, and prescription), in the part in which it prohibits general mitigating circumstances pursuant to Article 62-bis of the Penal Code from prevailing over iterated recidivism, as defined in Article 99, fourth paragraph, of the Penal Code, in reference to Articles 3 and 27, third paragraph, of the Constitution;
that the referring judge states that they must rule, in the context of a summary trial (rito abbreviato), on E. Y.M.T.M., accused of the crime of robbery, for having struck the employee of a minimarket with a punch and taken two bottles of liquor displayed for sale "of a total value of approximately 7-8 euros”;
that, concerning relevance, the a quo judge deems the contested iterated, specific, and infra-quinquennial recidivism to be present, given that the accused had two prior convictions for offenses (resistance to a public official, aggravated robbery, and personal injury) also characterized by violence and threat against the person, which would be a "manifestation [of his] increased social dangerousness and [his] more accentuated culpability […] as he has remained entirely deaf to the severe admonitions repeatedly addressed to him by the legal system”;
that the accused, however, offered the injured party a sum of money as compensation for damages, which, although it does not constitute the mitigating circumstance pursuant to Article 62, number 6), of the Penal Code, because it "cannot be deemed sufficient to fully compensate the moral damage suffered by R. M., considering the psychological trauma resulting from the aggression suffered,” can well be "valued for the purpose of recognizing general mitigating circumstances”;
that, in the referring judge's opinion, the recognized general mitigating circumstances should prevail over iterated recidivism, since, otherwise, the minimum custodial sentence, even if "reduced by one third due to the procedural choice,” would result as "disproportionate in itself compared to the concrete harmfulness of the act, in its objective and subjective dimension”;
that, however, the preclusion introduced by the challenged norm prevents taking into account the "mitigating effect of Article 62-bis of the Penal Code”;
that, concerning non-manifest groundlessness, the a quo judge believes that Article 69, fourth paragraph, of the Penal Code "presents aspects of unreasonableness, in contrast with Article 3 of the Constitution”;
that the challenged norm, in fact, would disincentivize the iterated recidivist accused from "compensating the injured party, even partially,” or from "subsequently exhibiting conduct that demonstrates genuine remorse and the will for social reintegration”;
that, moreover, the prohibition on general mitigating circumstances prevailing over iterated recidivism prevents "due account from being taken of changes in the accused’s life, such as to mitigate, the greater culpability and social dangerousness demonstrated by the relapse into the crime,” thus assigning them a preponderant relevance compared to the gravity of the concrete act in the process of individualizing the penalty;
that the challenged norm would finally result in "the application of the same punitive treatment to conduct of differing detrimental value,” also "by virtue of elements arising subsequent to the commission of the robbery offense,” and which are "symptomatic of a positive ongoing evolution in the convict's personality,” rendering him "less deserving of and in need of punishment, due to particularly disadvantaged economic or social conditions, as in this case”;
that, in the referring judge's view, Article 27, third paragraph, of the Constitution would also be violated, because the preclusion set by Article 69, fourth paragraph, of the Penal Code abnormally emphasizes "the role of recidivism, to the extent of nullifying the significance of post-offense conduct,” which can indeed express a "critical reconsideration of one's actions and the acceptance of the values of orderly and peaceful coexistence, within which the objective of rehabilitation is expressed”;
that the Prime Minister intervened in the proceedings, represented and defended by the State Attorney General’s Office, which, as a preliminary matter, objected to the inadmissibility of the questions due to incomplete reconstruction of the legal framework;
that, according to the State defense, the referring judge failed to address this Court’s Judgment No. 86 of 2024, which introduced the mitigating circumstance of a minor offense (fatto di lieve entità) into the crime of robbery, despite having recognized, in the concrete case, "factors mitigating the penalty, which […] in part concern the gravity of the act,” in addition to the "post-delictum conduct”;
that, on the merits, the questions would be manifestly unfounded, "in line with the orientation […] constantly expressed by the Court of Cassation, an orientation with which [the order of reference] does not engage”.
Considering that the GUP of the Court of Parma doubts the constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, as substituted by Article 3 of Law No. 251 of 2005, in the part in which it prohibits general mitigating circumstances under Article 62-bis of the Penal Code from prevailing over iterated recidivism under Article 99, fourth paragraph, of the Penal Code, concerning Articles 3 and 27, third paragraph, of the Constitution;
that, subsequent to the order of reference, this Court, with Judgment No. 117 of 2025, declared the unconstitutionality of Article 69, fourth paragraph, of the Penal Code, "in the part in which it provides for the prohibition of the prevailing effect of the mitigating circumstance of a minor offense, introduced by this Court’s Judgment No. 86 of 2024 in relation to the crime of robbery, over the aggravating circumstance of iterated recidivism under Article 99, fourth paragraph, of the Penal Code”;
that, as a consequence of said ruling, the mitigating circumstance of a minor offense in the crime of robbery has been exempted from the prohibition of prevailing effect following the balancing judgment with the aggravating circumstance of iterated recidivism, established by the challenged norm;
that, therefore, the potential recognition of said mitigating circumstance in the a quo proceedings would allow the referring judge to proceed with the balancing against iterated recidivism and, in case of prevalence, to reduce the penalty "by an amount not exceeding one third,” irrespective of the applicability of general mitigating circumstances;
that, according to constant constitutional jurisprudence, "'in the face of the supervening of declarations of unconstitutionality' (Order No. 26 of 2009) it is incumbent upon the referring judge to concretely assess the impact of the supervening changes, both with regard to relevance and to the non-manifest groundlessness of the raised questions of constitutional legitimacy (ex plurimis, Orders No. 182 of 2019 and No. 154 of 2018)” (Order No. 49 of 2020)” (Orders No. 184 and No. 183 of 2020);
that "such verification assumes a prejudicial significance in relation to the examination of the alleged constitutional illegitimacy flaws” in the order of reference (Order No. 184 of 2020; mutatis mutandis, Order No. 183 of 2020), which essentially complains that the preclusion imposed by Article 69, fourth paragraph, of the Penal Code prevents the penalty from being adjusted "to the concrete harmfulness of the act, in its objective and subjective dimension”;
that, therefore, the restitution of the case file to the referring judge must be ordered for a new assessment of the relevance and non-manifest groundlessness of the questions, in light of the changed legislative context.
for these reasons
THE CONSTITUTIONAL COURT
orders the restitution of the case file to the referring judge.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 2, 2025.
Signed:
Giovanni AMOROSO, President
Francesco Saverio MARINI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on December 19, 2025
The anonymized version is textually compliant with the original