ORDER NO. 195
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 pronounced the following
ORDER
in the judgment of constitutional legitimacy concerning Article 5, paragraph 8-bis, of Legislative Decree No. 286 of 25 July 1998 (Consolidated Text of Provisions Concerning Immigration and Rules on the Status of Aliens), brought by the Judge of the Preliminary Hearing of the Ordinary Court of Santa Maria Capua Vetere, in the criminal proceedings against M. C., with an order dated 20 January 2025, registered under no. 44 of the register of orders for the year 2025 and published in the Official Gazette of the Republic no. 12, special first series, of 2025.
heard in the Chamber of Council on 1 December 2025 by the Reporting Judge Roberto Nicola Cassinelli;
deliberated in the Chamber of Council on 2 December 2025.
Having considered that, by order of 20 January 2025, registered under no. 44 of the register of orders for 2025, the Judge of the Preliminary Hearing of the Ordinary Court of Santa Maria Capua Vetere raised questions of constitutional legitimacy regarding Article 5, paragraph 8-bis, of Legislative Decree No. 286 of 25 July 1998 (Consolidated Text of Provisions Concerning Immigration and Rules on the Status of Aliens), with reference to Articles 3 and 27 of the Constitution, insofar as it provides for the same sanctioning treatment for the crime of counterfeiting or altering the deeds and documents specified therein, and for the crime of using said documents, aimed at obtaining a residence permit, instead of providing for differentiated sanctioning treatments, in particular by not providing that the penalty for the crime of using counterfeited or altered deeds and documents be reduced by one-third, similarly to what is provided for by Article 489 of the Penal Code;
that the referring Judge reports being called upon to rule, under the summary procedure (rito abbreviato), on the criminal liability of M. C., accused of the crime provided for by the challenged provision, for having used, by sending it to the Immigration Office, a declaration of domestic employment relationship apparently issued by the National Institute for Social Security (INPS), Caserta branch, on 22 October 2018, and a copy of the identity card apparently issued by the Municipality of Casal di Principe, in the name of C. P., in order to obtain a residence permit;
that, adopting the objection raised by the defendant's defense, the referring Judge raises doubts as to the constitutional legitimacy of Article 5, paragraph 8-bis, of the consolidated immigration law, on the grounds that the provision conflicts with Articles 3 and 27 of the Constitution, as it equates, in terms of penalty (*quoad poenam*), multiple and autonomous factual circumstances, which differ in terms of gravity, conduct, and the degree of harm to the protected interest;
that, in particular, the legislator's choice to sanction with imprisonment from one to six years both the circumstance of forging an authorization title for residence in the Italian territory, and the circumstance of forging documents useful for issuing the residence permit, as well as, finally, the use of already forged deeds, aimed at the same purpose, appears unreasonable;
that the circumstances of counterfeiting/alteration, in the referring Judge's opinion, generally imply an organization, however rudimentary, of means and resources, and are in any case expressive of greater criminal capacity than the mere use of documents forged by others;
that, therefore, the provision of the same sanctioning treatment conflicts with the principle of reasonableness, based on the proportionality of the penalty to the gravity of the act, and consequently to the re-educational purpose of the penalty;
that a further, and even more evident, aspect of conflict with the invoked parameters arises from the comparison between the sanction provided for in the challenged provision for the various conduct stipulated therein and the penal code's regulation of documentary forgery offenses, which is instead characterized by a marked differentiation of the sanctioning treatment between the conduct of forgery and that of using forged deeds;
that, in fact, Article 482 of the Penal Code sanctions the material forgery of a public deed or a certificate or administrative authorization, when committed by a private subject, with the penalties provided for by Articles 476 and 477 of the Penal Code (respectively imprisonment from one to six years, and from six months to three years) reduced by one-third, and Article 489 of the Penal Code punishes the use of a forged deed—provided that there has been no complicity in the forgery—with the same penalties further reduced by one-third;
that, regarding the relevance of the questions, the referring Judge reiterates that the main proceedings concern the use of false documentation attesting to a domestic employment relationship, aimed at obtaining a residence permit, and therefore highlights the implications of the hoped-for alignment of the discipline provided by the challenged provision with that of the penal code referenced for comparison, noting that, if the defendant's criminal liability for the use of the forged deed were ascertained, the latter could benefit from the reduction of the penalty, according to the model outlined by Article 489 of the Penal Code;
that the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, to request that the questions be declared inadmissible or, in any event, manifestly unfounded;
that, according to the State defense, the questions lack relevance as they are hypothetical;
that, in fact, the order of referral does not indicate whether the conduct attributed to the defendant is limited to the use of false documentation, and in the referring Judge's silence, it must be concluded that the documents used, or at least one of them – the declaration of a non-existent domestic employment relationship – were counterfeited by the defendant himself;
that, therefore, the intervention of this Court could prove irrelevant for the purpose of the decision to be made by the referring Judge;
that, moreover, on the merits, the questions are manifestly unfounded, as this Court's Judgment No. 27 of 2025, which declared analogous questions concerning Article 5, paragraph 8-bis, of the consolidated immigration law, referring to the same parameters invoked today, unfounded, has intervened subsequent to the order of referral;
that the aforementioned ruling excluded, on one hand, that the factual circumstances encompassed in the challenged provision are characterized, even in abstract terms, by such different disvalue as to require the provision of different statutory ranges, and, on the other hand, affirmed that the peculiar nature of the documents indicated in the challenged Article 5, paragraph 8-bis, of the consolidated immigration law renders Article 489 of the Penal Code not usefully invoked as a *tertium comparationis*.
Considering that the Judge of the Preliminary Hearing of the Court of Santa Maria Capua Vetere raised questions of constitutional legitimacy of Article 5, paragraph 8-bis, of Legislative Decree No. 286 of 1998, with reference to Articles 3 and 27 of the Constitution;
that the challenged provision, in the version applicable to the main proceedings (*giudizio a quo*), provides for the identical sanctioning treatment of imprisonment from one to six years for "[w]hoever counterfeits or alters an entry or re-entry visa, a residence permit, a residence contract or a residence card, or counterfeits or alters documents in order to obtain the issuance of an entry or re-entry visa, a residence permit, a residence contract or a residence card, or uses one of these counterfeited or altered documents";
that the referring Judge deems unreasonable the *quoad poenam* equalization of the indicated factual circumstances, which are, in his view, characterized by different disvalue, and, in particular, assumes that the failure to provide for a reduction of the penalty for the factual circumstance of mere use of a counterfeited or altered document, by a person who has not been complicit in the counterfeiting or alteration, results in an unreasonable disparity of treatment compared to the sanctioning discipline of common forgery offenses contained in the Penal Code, in which the mere use of the forged or altered deed, pursuant to Article 489 of the Penal Code, is punished with a one-third reduction of the penalty compared to the material forgery offenses configured therein;
that, before examining the indicated questions, it is necessary to verify whether the amendments made to the text of the challenged provision subsequent to the version in force at the time of the conduct attributed to the defendant require the case file to be returned to the referring Judge;
that these amendments, introduced by Article 16, paragraph 1, letter b), number 2), of Law 23 December 2021, No. 238 (Provisions for the fulfillment of obligations arising from Italy's membership in the European Union - European Law 2019-2020) and by Article 18, paragraph 1, letter b), of Decree-Law 13 June 2023, No. 69 (Urgent provisions for the implementation of obligations arising from European Union acts and from infringement and pre-infringement proceedings pending against the Italian State), converted, with modifications, into Law 10 August 2023, No. 103, added new types of documents to the list contained in the provision in force at the time of the conduct charged to the defendant, dating back to October 2019;
that, since these are extensive amendments to punishability, which have not even affected the sanctioning treatment provided for by the challenged provision, any impact on the main proceedings must be excluded, with the consequence that the return of the case file is not necessary;
that, furthermore, by way of preliminary examination, the State Attorney's objection of inadmissibility of the questions must be examined, which assumes their hypothetical nature, and therefore the lack of relevance;
that the objection is unfounded;
that the order of referral shows that the defendant is charged with the use of false documents, and with regard to this criminal hypothesis, the referring Judge structures the censures concerning the sanctioning treatment, allegedly too severe both in comparison with the other factual circumstances configured in the challenged provision itself, and with the sanction provided for by Article 489 of the Penal Code for the use of the forged deed;
that, contrary to what was objected by the State Attorney's Office, the referring Judge was not required to provide reasoning on the qualification of the concrete factual circumstance in terms of mere use of false documents, thereby anticipating the judgment on the *an* (whether) of the defendant's criminal liability (ex plurimis, Judgment No. 27 of 2025);
that, therefore, the application of the challenged provision is not merely eventual and subsequent, and this excludes the hypothetical nature of the questions (ex plurimis, Orders No. 210 of 2020, No. 259 of 2016 and No. 161 of 2015);
that, on the merits, this Court has already ruled on questions analogous to those currently under review, with Judgment No. 27 of 2025, filed on 7 March 2025, and therefore subsequent to the order of referral under scrutiny;
that said judgment declared unfounded the questions of constitutional legitimacy of Article 5, paragraph 8-bis, of Legislative Decree No. 286 of 1998, raised by the Judge of the Preliminary Hearing of the Ordinary Court of Vicenza, with reference to Articles 3 and 27 of the Constitution, in which the provision in question was also challenged for the failure to provide for a differentiated statutory range for the individual abstract factual circumstances stipulated therein, and in particular the failure to provide for a penalty reduced by one-third for the less serious factual circumstance, identified as that of the mere use of a document forged or altered by others, following the model of the discipline of documentary forgery offenses provided for by the Penal Code;
that the cited Judgment No. 27 of 2025 denied that the provision currently under examination comprises factual circumstances that, already in their abstract dimension, are clearly characterized by such a different disvalue as to necessitate the provision of different statutory ranges;
that, considering the specific type of documents to which the challenged provision refers, this Court noted that the use of the document generally presupposes a prior complicity, at least moral, of the user in the forgery of the document itself, which normally contains the identifying data of the alien and which only the interested party himself is able to communicate to the person carrying out the material conduct of forgery;
that, therefore, it appeared not unreasonable that "the legislator, starting from this implicit assumption, considered it appropriate to subject all three types of conduct described by the challenged provision to the same statutory range, thus allowing the Public Prosecution to obtain a conviction based on the proof, alternatively, of only one of them" (point 4.3 of the Considerations in Law);
that, furthermore, this Court found that the violation of the principle of equality under the aspect of disparity of treatment between the challenged provision and the *tertia comparationis* invoked by the referring Judge, and in particular that represented by Article 489 of the Penal Code, was also non-existent;
that, in this regard, Judgment No. 27 of 2025 highlighted that "[t]he reasons that led the legislator of 1930 to provide for a general reduction of the penalty for those who have simply used the forged deed, without having been complicit in its forgery, do not seem [...] necessarily present also with reference to the special documents to which the challenged provision refers, regarding which, as has just been observed, it is not easy to hypothesize, already on a factual level, their use in the absence of prior complicity in their forgery; and with regard to which, in any case, it is precisely the moment of use that creates an immediate danger for the interest that the legislator intends to protect" (point 4.4 of the Considerations in Law);
that, finally, the foundation of the censures concerning the re-educational function of the penalty, which were raised moreover ancillary to those raised with reference to the principle of equality, was excluded;
that the present order of referral does not provide new arguments compared to those already examined in the cited Judgment No. 27 of 2025, or such as to lead to a different conclusion;
that, therefore, the questions must be declared manifestly unfounded (ex plurimis, Orders No. 50 of 2025, No. 97 and No. 78 of 2024, No. 214 of 2023).
Having seen Articles 26, second paragraph, of Law 11 March 1953, No. 87, and 11, paragraph 1, of the Supplementary Rules for Proceedings before the Constitutional Court.
for these reasons
THE CONSTITUTIONAL COURT
declares the manifest groundlessness of the questions of constitutional legitimacy of Article 5, paragraph 8-bis, of Legislative Decree No. 286 of 25 July 1998 (Consolidated Text of Provisions Concerning Immigration and Rules on the Status of Aliens), raised, with reference to Articles 3 and 27 of the Constitution, by the Judge of the Preliminary Hearing of the Ordinary Court of Santa Maria Capua Vetere, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 2 December 2025.
Signed:
Giovanni AMOROSO, President
Roberto Nicola CASSINELLI, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on 22 December 2025
The anonymized version conforms, in text, to the original