RULING NO. 193

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 delivered the following

RULING

in the constitutional legitimacy proceedings concerning Article 624-bis, first paragraph, of the Penal Code, initiated by the Ordinary Court of Florence, First Penal Section, sitting as a single judge, in the criminal proceedings against M.H. C., with an order dated December 16, 2024, registered under no. 6 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 5, special first series, of 2025.

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

having heard in the private hearing of November 3, 2025, the Reporting Judge Roberto Nicola Cassinelli;

deliberated in the private hearing of November 3, 2025.

Having considered the facts

1.– With the order of December 16, 2024 (reg. ord. no. 6 of 2025), the Ordinary Court of Florence, First Penal Section, sitting as a single judge, raised two questions of constitutional legitimacy regarding Article 624-bis of the Penal Code, the first in reference to Articles 3 and 25, second paragraph, of the Constitution, and the second, formulated as a secondary submission, in reference to Articles 3 and 27, third paragraph, of the Constitution.

1.1.– The Court notes that it must rule on the indictment for aggravated theft (theft in a dwelling) against M.H. C., who was apprehended after taking possession of a box containing antiques, with an aggregate value of EUR 500.00, which the owner had temporarily deposited in the entrance hall of the condominium building where he resided.

On this basis, it deems a ruling by this Court necessary regarding the constitutional legitimacy of the criminal provision, insofar as it applies also to the common areas of condominium buildings; alternatively, it asserts that the same provision would be constitutionally illegitimate to the extent that it does not provide for a reduction of the penalty by up to one-third "when, due to the nature, type, means, methods, or circumstances of the act, or the particular insignificance of the damage or danger, the act is deemed to be of slight gravity."

2.– Regarding the relevance of the principal question, the referring judge, noting that in the crime of theft in a dwelling the incriminated conduct is carried out "by entering a building or another place intended in whole or in part as a private dwelling or its appurtenances," observes that case law from the Supreme Court of Cassation, with a consolidated orientation that constitutes living law, has affirmed that the common areas of a condominium building constitute appurtenances of a 'private dwelling' for the purposes of applying the offense.

In the case at hand, since the theft occurred in the entrance hall of a condominium building, the doubt regarding constitutional legitimacy is therefore decisively relevant in affirming the defendant's liability for the crime of theft in a dwelling.

2.1.– This being established, and as to the non-manifest groundlessness, the referring judge contends that the criminal provision, insofar as it also applies to the common parts of a condominium, violates Article 3 of the Constitution under the principle of reasonableness, as well as "the principle of wrongfulness discernible from Article 25, paragraph 2, of the Constitution."

The latter parameter requires that the incriminated conduct, in all its aspects, possess an objective wrongfulness, sufficient to cause actual harm (or danger) to the protected legal interest.

In this sense, the identification of interests worthy of protection and of offenses subject to criminalization is reserved to the discretion of the legislator, whose choices may be subject to constitutional review if they are manifestly unreasonable or arbitrary; and such, precisely, would be the choice made in this case, which would have the effect of "treating identical situations as radically different."

2.2.– If, in fact, the ratio legis of the criminal provision is to punish, with harsher sanctions than those provided for simple theft under Article 624 of the Penal Code, the conduct of one who intrudes into another's 'private dwelling'—considering the personal dimension of the assets involved in such a place, as acts of private life are conducted there—there is, however, an evident difference between the appurtenances of individual properties (garages, tool sheds, laundry rooms) and the common areas of a condominium building.

The latter, indeed, involve "a different level of privacy and exclusivity," as they are normally frequented by a large number of people, often strangers to one another, who access the condominium building, including for family or work reasons, by virtue of the consent given by only some of the entitled parties, such that the level of security and privacy inherent to the notion of 'private dwelling' is, here, "decidedly reduced and closer to that of public spaces."

2.3.– Moreover, the referring judge observes that in other aspects of the criminal law system, the Supreme Court of Cassation case law has not afforded condominium spaces the same protection as private dwellings.

Thus, for example, it has been held that video surveillance ordered by judicial police in the lobby or staircase of a condominium building does not require prior authorization, as it is a "place frequently accessible by an entire category of persons or by an indeterminate number of subjects who have the legal and practical possibility of accessing it without legitimate opposition from those who exercise factual or legal power over said place"; furthermore, for the purposes of constituting the crime of illicit interference in private life, under Article 615-bis of the Penal Code, condominium stairs and their landings have been deemed not to constitute "places of private dwelling," as they lack that "particular relationship of the subject with the environment in which he lives his private life."

Finally, the referring judge rules out the possibility of a constitutionally compliant interpretation, as the interpretation being challenged must be assumed to be living law and can therefore be subjected to a review of compatibility with the evoked parameters without the need to attempt a different hermeneutic solution.

3.– As to the subsidiary question, the Court illustrates its relevance by asserting that the facts under judgment would be characterized by particular insignificance, not only due to the modest value of the stolen goods but also because the defendant "remained inside the building for a very brief period of time" without "using any forced entry," while the victim "lost possession of their goods only for a very limited period of time."

From these elements, considered synergistically, the "extremely reduced disvalue" of the contested act should be inferred.

3.1.– With respect to the non-manifest groundlessness, the referring judge recalls this Court's decision (Ruling no. 117 of 2021) by which an identical question was declared inadmissible, advocating for a reconsideration in light of subsequent case law, which introduced an analogous mitigating circumstance, respectively, for the crimes of robbery and extortion (sentencing referring to no. 86 of 2024 and no. 120 of 2023).

In this regard, it observes that the penalty for the crime of theft in a dwelling has undergone a progressive tightening, up to the current statutory framework, which provides for imprisonment from four to seven years and a fine from EUR 927 to EUR 1,500.

Furthermore, as a result of the amendments introduced by Article 5, paragraph 1, letters a) and b), of Law no. 36 of April 26, 2019 (Amendments to the Penal Code and other provisions concerning self-defense), in the case of concurrence with one or more aggravating circumstances, the penalty is imprisonment from five to ten years and a fine from EUR 1,000 to EUR 2,500, and any concurrent mitigating circumstances, other than those provided for in Articles 98 and 625-bis of the Penal Code, cannot be considered equivalent or prevailing.

Such treatment, in the absence of the requested additive intervention, would conflict with Article 3 of the Constitution, resulting in a sanction disproportionate to acts of reduced offensive significance; moreover, the penalty that could be imposed would end up corresponding to that which, following the aforementioned rulings of this Court, is currently provided for the more serious crimes of robbery and extortion, where the act is deemed to be of slight gravity.

This would also result in a frustrating effect on the rehabilitative purpose of the penalty, expressed by Article 27, third paragraph, of the Constitution, because a sanction violating the proportionality standard would necessarily be perceived by the convicted person as unjust.

4.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, which requested that the questions be declared unfounded.

The State defense maintained that the legislator's choice to equate all appurtenances to places of private dwelling is neither arbitrary nor unreasonable, considering that theft in a dwelling is a multi-offending crime, aimed at protecting not only the proprietary interest underlying the conduct of appropriation but also the domicile, understood as a safeguard of security and the sphere of inviolability and privacy of the individual.

4.1.– In this sense, even the common areas of a condominium building appear characterized by this purpose, as activities strictly connected to those typical of the living dimension take place there and are therefore also aimed at satisfying the private life needs of their owner, even if not exclusively.

As to the fact that other subjects may access common areas, this is a circumstance always and in any case subject to the consent of the entitled party and equally connected to the instrumental nature of these places in relation to individual properties; exactly in these terms, moreover, the case law of the Supreme Court of Cassation has subsumed common condominium areas under the concept of 'private dwelling' relevant in this context.

4.2.– Finally, regarding the subsidiary question, the Government stresses that choices regarding the calibration of penalties fall exclusively to the legislator, who, in this instance, deemed it appropriate to severely punish conduct possessing particular wrongfulness due to the significant repercussions it entails for the generality of citizens, towards whom the crime of theft in a dwelling fosters "a widespread sense of insecurity and frustration [...] negatively affecting the quality of their daily lives."

Nor, on the other hand, can the offense in question be validly compared with the crimes of extortion or robbery; these, in fact, present a markedly heterogeneous element compared to it, represented by the concept of "violence or threat" that characterizes their objective element, which, due to its broad scope, is abstractly capable of encompassing even acts of absolute slightness.

Having considered in law

1.– The Court of Florence, First Penal Section, sitting as a single judge, with the order indicated in the heading (reg. ord. no. 6 of 2025), raised questions of constitutional legitimacy concerning Article 624-bis of the Penal Code.

The referring judge prefaces that the main proceedings concern an indictment for the crime of theft in a dwelling, committed by taking possession of goods located in a condominium entrance hall.

It asserts, in this regard, that the criminal provision would be constitutionally illegitimate, by contrast with Articles 3 and 25, second paragraph, of the Constitution, to the extent that—based on the consolidated interpretation of the case law of the Supreme Court of Cassation, which constitutes living law—it also applies to the common areas of condominium buildings.

Alternatively, it challenges the same provision in reference to Articles 3 and 27, third paragraph, of the Constitution, to the extent that it does not provide for a reduction of the penalty by up to one-third "when, due to the nature, type, means, methods, or circumstances of the act, or the particular insignificance of the damage or danger, the act is deemed to be of slight gravity."

2.– The referring judge sets out the first question by observing that the principle of wrongfulness "is required to operate not only with respect to the base offense but also with respect to circumstances and all institutes that in any way affect the individualization of the penalty," requiring that the sanction correspond to an actual infringement, or endangerment, of the protected interest.

In this regard, it notes that although it is up to the legislator's discretion to identify interests worthy of protection, punishable conduct, and their sanctioning regime, the related choices may be subject to constitutional review if they suffer from manifest unreasonableness.

This would be the case here, as the wrongfulness of theft in a dwelling assumes a personal connotation, linked to the inviolability of the domicile guaranteed by Article 14 of the Constitution, which is not discernible when the conduct is carried out in a common area of the condominium building, an area that does not involve such a level of privacy and exclusivity.

2.1.– The question is unfounded.

Article 624-bis of the Penal Code punishes the act of one who "appropriates movable property belonging to another, taking it from the person who detains it, with the aim of deriving profit for oneself or for others, by entering a building or another place intended in whole or in part as a private dwelling or its appurtenances."

According to the interpretative trend of the case law of the Court of Cassation, established starting from the ruling of the joint penal sections of March 23-June 2, 2017, no. 31345, the notion of private dwelling exclusively includes places where acts of private life are carried out non-occasionally and which are not open to the public or accessible to third parties without the consent of the holder, including those intended for work or professional activities.

The place intended as a private dwelling, as specified in the aforementioned ruling, is relevant "not so much in its objective composition as in its being a spatial projection of the person, i.e., the primary and essential sphere for the free expression of personality."

2.2.– The criminal provision then extends to conduct carried out in the "appurtenances" of the private dwelling, the notion of which "does not coincide with the civil one, as it does not require the exclusive use of the asset by a single owner" and must instead prioritize the utility they afford to the place of private dwelling (as per, among others, Court of Cassation, Fifth Penal Section, ruling of December 16, 2019-March 2, 2020, no. 8421).

Appurtenances too, in fact, are characterized by their "instrumentality [...] to the domestic needs of the owner" (Court of Cassation, Fourth Penal Section, ruling of January 10-28, 2013, no. 4215).

2.3.– In other words, the legislator has deemed that the theft of an asset located in an appurtenance has greater wrongfulness in itself than simple theft and has thus equated its sanctioning regime to that provided for theft committed in a place of private dwelling.

This extension has brought about a strengthening of the protection provided for the private dwelling, thus safeguarded even with respect to assets intended for its service, which constitute areas where private life activities connected to the dimension of the domicile may take place.

As emphasized by the case law of the Court of Cassation, the need "to punish with greater severity the particular danger manifested by one who, with the aim of committing theft, does not hesitate to enter a dwelling, with the concrete possibility of encountering the passive subject [...] also exists when the crime is committed in an immediate appurtenance of the dwelling [, such being intended for the performance of activities strictly complementary and instrumentally connected to living activities]" (among others, Court of Cassation, Fourth Penal Section, ruling of December 5-15, 2023, no. 50105; Court of Cassation, Fifth Penal Section, ruling of April 28-July 15, 2021, no. 27326).

2.4.– Now, such a need also exists with reference to the common parts of the condominium building, since they are established to serve and protect the private dwellings located in the condominium and are used for this purpose, in their entirety, by the co-owners pro quota.

The common parts of the condominium, in other words, also possess the fundamental characteristics of a 'place of private dwelling,' consisting of their non-openness to the public and their non-accessibility by third parties without the consent, even implicit, of the holders, who in any case retain the power to limit or prevent access to unwelcome persons.

2.5.– Finally, the circumstance, raised by the referring judge, that in relation to different profiles—such as, in particular, interceptions effected by video surveillance and the crime of illicit interference in private life—the legal system does not recognize the same degree of protection for common condominium areas as for private dwellings, is irrelevant.

This latter interpretation, in fact, is connected to a different understanding of the concept of 'domicile' than the one relevant here, as it concerns the domicile understood as the place where the person withdraws from external interference, since they are allowed "the expression of private life sheltered from the gaze of others" (as per, among others, Court of Cassation, Second Penal Section, ruling of July 6-August 1, 2023, no. 33580).

2.6.– Consequently to these observations, the interpretation challenged by the referring judge, by which the protection provided for places of private dwelling is extended to the common areas of the condominium building, does not appear to be either unreasonable or disrespectful of the principle of wrongfulness.

The question raised as a primary submission is therefore deemed unfounded.

3.– Turning to the subsidiary question, the referring judge, as stated, doubts the constitutional legitimacy of the criminal provision to the extent that it does not provide for a reduction in the penalty when the act is deemed to be of slight gravity.

Such a provision, in fact, would allow the sanction to be adjusted to the wrongfulness of the conduct, aligning it with the standard of reasonableness and the possibility that it fulfills its rehabilitative purpose; furthermore, the disparity in treatment that currently exists compared to the crimes of robbery and extortion, in relation to which this Court removed said normative omission, precisely in order to allow the sanction to be adjusted to the act (Rulings no. 86 of 2024 and no. 120 of 2023), would be eliminated.

3.1.– This question is also unfounded.

This Court has always recognized the broad discretion of the legislator in defining its criminal policy, particularly in determining the penalties applicable to those who have committed crimes (in this sense, among numerous others, Rulings no. 207 of 2023 and no. 117 of 2021).

The exercise of this discretion is reviewable only under the aspect of reasonableness, in the sense that the sanctioning regime "must be rationally justifiable in relation to one or more legitimate purposes pursued by the legislator" and the means chosen "must not be manifestly disproportionate with respect to those legitimate purposes" (as per, among others, Ruling no. 46 of 2024).

3.2.– In this sense, and although in relation to a different aspect of the treatment reserved for theft in a dwelling, Ruling no. 216 of 2019 clarified that its ratio legis lies in the "discretionary, and not unreasonable, presumption of the legislator regarding the particular gravity of the act of one who, in order to commit theft, enters another's dwelling, or another place of private dwelling or its appurtenances, and the special subjective dangerousness demonstrated by the perpetrator of such a crime."

Confirming this, the subsequent Order no. 67 of 2020 specified "that the particular gravity of the act and the special subjective dangerousness of its perpetrator, demonstrated by unauthorized entry into the aforementioned places with the aim of committing theft there, do not cease merely because the perpetrator has not used violence against anyone."

The legislative choice to adopt a more severe sanctioning treatment thus appears justified, when related to a criminal conduct so characterized.

3.3.– Moreover, as this Court has affirmed, the conduct punished by Article 624-bis, first paragraph, of the Penal Code, is described in definitive terms, and in relation to it, acts that significantly deviate from the offensive scope of the abstract offense are not concretely imaginable (Ruling no. 117 of 2021); the same ruling specified, as regards the personal aspect of the injury caused to the victim of the crime, that "the latter is insusceptible to a quantitative gradation, since the domicile, as the sphere of the person, is either violated or not, thus making a 'slight' entry into another's dwelling inconceivable already on a logical level."

In other words, theft in a dwelling does not include such diversified instances as to warrant the introduction, by this Court, of the mitigating circumstance of slight gravity.

Therefore, the alleged conflict with the principles of reasonableness and the rehabilitative purpose of the penalty does not exist.

3.4.– Nor does the legislator's choice appear to violate the principle of equality, considering that the mitigating circumstance of slight gravity was instead introduced by this Court for the crimes of robbery and extortion.

In those cases, the provision of a sanctioning "safety valve" was justified by the particular breadth of the typical offense, in which the element of "violence or threat" is capable of encompassing multifaceted conduct with a wide gradation of wrongfulness.

In the presence of a typical offense thus structured, the jurisprudence of this Court found justification for the legislator's choice to employ the technique of "carving out" less serious instances, a choice justified, precisely, by the fact that "the base crime, due to its formulation, has a broad scope" (Ruling no. 88 of 2019).

Such breadth is not found in the crime of theft in a dwelling, in which, instead, as observed, the conduct injurious to the protected interest under the personal aspect is decisively relevant, which, by its nature, either is or is not.

3.5.– It goes without saying, moreover, that all the judge's powers remain intact regarding the calibration of the penalty, also in consideration of the peculiarities of individual facts, in relation to the possibility that the gravity of the injury to the victim's private sphere may attenuate as one moves away from the places where their most personal, including relational, activities are conducted.

4.– For all the foregoing reasons, the questions of constitutional legitimacy of Article 624-bis of the Penal Code raised by the Ordinary Court of Florence, First Penal Section, sitting as a single judge, must be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 624-bis of the Penal Code, raised, in reference to Articles 3, 25, second paragraph, and 27, third paragraph, of the Constitution, by the Ordinary Court of Florence, First Penal Section, sitting as a single judge, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on November 3, 2025.

Signed:

Giovanni AMOROSO, President

Roberto Nicola CASSINELLI, Rapporteur

Roberto MILANA, Director of the Registry

Filed with the Registry on December 22, 2025

 

The anonymized version is textually compliant with the original