JUDGMENT NO. 201
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 rendered the following
JUDGMENT
in the constitutional legitimacy proceedings concerning Article 69-bis, paragraph 3, of Law of 26 July 1975, no. 354 (Provisions on the penitentiary system and the execution of custodial and liberty-restricting measures), as substituted by Article 5, paragraph 3, of Decree-Law of 4 July 2024, no. 92 (Urgent measures concerning the penitentiary system, civil and criminal justice, and Ministry of Justice personnel), converted, with amendments, into Law of 8 August 2024, no. 112, initiated by the Surveillance Magistrate of Spoleto and the Surveillance Magistrate of Naples, with orders dated 25 March 2025 and 10 March 2025, respectively registered under numbers 73 and 75 of the register of orders of 2025 and published in the Official Gazette of the Republic no. 18, first special series, of the year 2025.
Having seen the intervention documents of the President of the Council of Ministers;
having heard in the public hearing of 20 October 2025 the Reporting Judge Francesco VIGANÒ;
deliberated in the public hearing of 20 October 2025.
Facts Considered
1.– With order of 25 March 2025, registered no. 73 of the register of orders of 2025, the Surveillance Magistrate of Spoleto raised questions of constitutional legitimacy regarding Article 69-bis, paragraph 3, of Law of 26 July 1975, no. 354 (Provisions on the penitentiary system and the execution of custodial and liberty-restricting measures), as substituted by Article 5, paragraph 3, of Decree-Law of 4 July 2024, no. 92 (Urgent measures concerning the penitentiary system, civil and criminal justice, and Ministry of Justice personnel), converted, with amendments, into Law of 8 August 2024, no. 112, in reference to Articles 3 and 27, third paragraph, of the Constitution, challenging it "insofar as it provides that the convicted person may submit an application for early release only when he has expressly indicated, under penalty of inadmissibility, in the relevant application, that he has a specific interest in obtaining the benefit, other than those referred to in paragraphs 1 and 2" of the same Article.
1.1.– The referring judge is called upon to evaluate two applications for early release, relating to the six-month periods from 24 November 2023 to 24 May 2024 and from 24 May to 24 November 2024, submitted by A. S., detained at the Terni Penitentiary Institution in execution of a sentence of four years, ten months, and three days of imprisonment, determined by an execution order of the Public Prosecutor's Office at the Court of Appeal of Naples issued on 4 September 2024.
The referring judge specifies that the aforesaid provision:
– indicates the start date of serving the sentence as 22 March 2023;
– sets the end date of the sentence as 10 December 2027, taking into account the reductions already granted to the individual, as early release credits and for the periods prior to 24 November 2023, by various surveillance offices;
– pursuant to paragraph 10-bis of Article 656 of the Code of Criminal Procedure, introduced by Decree-Law no. 92 of 2024, as converted, indicates the further sentence reductions obtainable as early release credits in the event of the convicted person's participation in the rehabilitation process, which would lead to a recalculation of the sentence end date to 8 December 2026.
1.2.– Regarding the relevance of the questions, the referring judge recalls that Article 5 of Decree-Law no. 92 of 2024, as converted, amended the procedure for granting early release, establishing, on the one hand, that the verification of the existence of the prerequisites for granting the sentence reduction is generally carried out ex officio by the surveillance magistrate, in the cases provided for by paragraphs 1 and 2 of the amended Article 69-bis of the Penitentiary Code, and on the other hand, that the convicted person may submit an application for early release only when he has a specific interest therein, other than those referred to in paragraphs 1 and 2, to be indicated, under penalty of inadmissibility, in the application itself (paragraph 3).
In light of the legislative amendment – applicable in the present case, pursuant to the tempus regit actum principle governing procedural normative changes – the applications would be inadmissible. The interested party is, in fact, not in the situations provided for by paragraphs 1 and 2 of Article 69-bis, nor has he indicated the "specific interest" now required by paragraph 3 of the same Article. Only the acceptance of the constitutional legitimacy questions would allow the referring judge to evaluate the merits of the applications, valuing the acquired reports, which attest to the positive treatment path of the applicant, due to the correct conduct observed, participation in school courses, and intramural work activity.
1.3.– As for the non-manifest groundlessness, the referring judge doubts the compatibility of the new regulation with Articles 3 and 27, third paragraph, of the Constitution, based on articulated arguments, which can be summarized as follows.
1.3.1.– First, the referring judge observes that the reform introduced by Decree-Law no. 92 of 2024, as converted, "shifts from an early release granting regime where the party's application constituted the rule, to a residual nature of this option," given that the assessment of the computability of sentence reductions occurs ex officio and only during the review of an application for an alternative measure or another penitentiary benefit for which early release affects the quantum of sentence already served, and therefore the grantability of the requested benefit, or near the end of the sentence.
Since only on these occasions would the surveillance magistrate be called upon, ex officio, to assess whether the interested party has participated in the rehabilitation process, the latter, no longer being able to periodically request feedback on the correctness of his conduct for the purpose of early release, would remain in a "condition of waiting" for long periods, losing "that dialogic relationship [...] with the surveillance magistrate, capable of making him immediately perceive the reward of participatory conduct with respect to the treatment rules, as well as the potential gravity, conversely, of involutionary behaviors that have occurred, through the sanction of rejection of the application" for early release.
Furthermore, the convicted person's possibility to request judicial review of his conduct, at times other than those in which the official assessment takes place, would remain "confined within a very narrow perimeter," as it is guarded by the necessity to indicate a specific interest; an interest that, according to the explanatory report accompanying the bill for the conversion of Decree-Law no. 92 of 2024, essentially equates to obtaining the "dissolution" of the aggregation of sentences. This is in clear discontinuity with the previous system, in which the convicted person held the "right to request early release as soon as he had accrued six months of sentence served, without having to specify any interest other than the in re ipsa interest of knowing the assessment regarding the conduct held and learning, definitively, what sentence reduction this had guaranteed him."
1.3.2.– The new procedural framework would not only lead to practical difficulties, due to the concentration of assessments on early release at predetermined times and the consequent risk of accumulating delays detrimental to convicted persons, potentially forcing them to remain in prison "even well beyond the 'virtual end of sentence'"; but it would also be contrary to the rehabilitative purpose of the sentence under Article 27, third paragraph, of the Constitution, as it would produce the "substantial nullification of the psychological effect of strengthening rehabilitative intentions, which periodic assessments of participation in treatment have hitherto produced on detained persons, as an incentive for conduct conforming to the rules and oriented, well before and beyond the grantability of alternative measures, towards resocialization."
1.3.3.– The current regulatory framework would also be unreasonable and therefore contrary to Article 3 of the Constitution, insofar as it maintains "a semi-annual standard for judging the conduct of the convicted person" without, however, deriving from it, except in the presence of a specific interest, the right to know, after each six-month period, whether such conduct constitutes "a participatory execution of the sentence with respect to treatment, or conversely not deserving of such positive judgment."
1.3.4.– The unreasonableness would be even more evident in the specific case, where the convicted person has already previously obtained sentence reductions as early release credits, based on applications formulated in terms identical to those that, now, should be deemed inadmissible, even if referring to periods prior to the entry into force of Decree-Law no. 92 of 2024, as converted. The interested party would thus undeservedly suffer "a treatment regression, losing the right, enjoyed until the entry into force of the new Article 69-bis of the Penitentiary Code, to know precisely his end of sentence" upon the completion of each six-month period of detention, in order to "begin [...] to concretely plan his return to society."
The disregard for the rehabilitation process actually completed by the convicted person who has already achieved, in practice, a degree of rehabilitation adequate for the granting of the benefit would conflict "– if not with Article 25, second paragraph, of the Constitution – with the principle of equality and the rehabilitative purpose of the sentence (Articles 3 and 27, third paragraph, of the Constitution)" (reference is made to this Court's Judgment no. 32 of 2020), as it is "radically different to be able to rely on an assessment that arrives, upon request, semester by semester, compared to the waiting, in the uncertainty of actual granting, deferred to a postponed phase, potentially even years later."
1.3.5.– The amendment introduced by Decree-Law no. 92 of 2024, as converted, would thus result in "a serious breach of the very meaning of early release as a litmus test, appropriately semi-annualized by the legislator, of the conduct held by the convicted person over time, a true dialogic mechanism that, through party applications, allows the interested party to receive paced, periodic responses, which serve as guidance for his conduct, and which allow the surveillance magistrate to assess the personality developments of the convicted person with a periodicity close to the positive and negative events that characterize the penitentiary life of the interested party."
The referring judge refers in this regard to the considerations in this Court's Judgment no. 276 of 1990, according to which the semi-annual frequency of the assessment for granting early release would be "the strong point of the rehabilitative instrument," representing "a stimulus that engages the volitional energies of the convicted person towards the prospect of a reward to be seized in a short period of time, provided that in that time he manages to adhere to the rehabilitative action"; a stimulus capable of leading to the gradual "development of a different way of being, resulting from the satisfaction for the achievements obtained and the trust acquired in the forces of his commitment."
In the referring judge's opinion, the stringent limitation on the possibility of submitting the application for early release semester by semester would compromise the rehabilitative purpose of the institute, "inhibiting that path of progressive personal maturation, which the Constitutional Court considered the very heart of the benefit, postponing until a final assessment, deprived of its educational value, any confrontation with one's own behaviors, as if a student were allowed to know the outcome of his studies only at the end, while also being prohibited for years from accessing a confrontation with the educational institution regarding the adherence shown, period by period, and at the same time being prevented from reorienting his conduct positively, where necessary."
This compromise would be particularly significant in the current context, marked by widespread prison overcrowding and the consequent difficulty in activating individualized resocialization paths; a context in which "being able to mark the immobile time of detention through periodic assessments of participatory conduct constitutes an incentive, and sometimes the only remaining incentive, capable of reinforcing the convicted person's intentions to proceed on his rehabilitation path."
1.3.6.– Furthermore, considering the limited possibility for the surveillance magistrate to ex officio assess the granting of early release before the end of the sentence approaches, the necessity for the interested party to allege a specific interest to prompt judicial review exhibits "further aspects contrary to the rehabilitative purpose of the sentence and to unreasonableness."
Under Article 69-bis, paragraph 1, of the Penitentiary Code, in fact, the ex officio assessment by the surveillance magistrate regarding the granting of early release would not occur upon any application for an alternative measure or other penitentiary benefit, but only to the extent that the reduction is relevant in determining the quantum of sentence served necessary to access the benefit requested in each case. In this way, every time such relevance is lacking, and an application for early release has never been submitted due to the lack of a specific interest, the surveillance judiciary would have to review the grantability of the alternative measure without a decision ever having been made on early release. However, the measure of the remaining sentence calculated net of early release credits would significantly affect the judicial assessment concerning "the meaning and credibility of an alternative measure program" and the calculation of available additional intramural observation periods.
Ultimately, the impossibility of "cumulating judicial assessments semester after semester" on the grantability of early release, "true building blocks of a broader rehabilitative edifice," would in practice make it more difficult for the convicted person to access measures alternative to detention, both because he would be deprived of a "significant pedagogical-propulsive tool" and because the surveillance court might assess the grantability of the alternative measure based on a quantum of sentence yet to be served, higher than what would result if the semi-annual early release credits had already been granted periodically. The convicted person would see "an inhibition of a certain reconstruction, and not only hoped for, of his real end of sentence," and could not therefore "realistically plan the stages of his resocialization path," even in preparing an alternative measure program to be submitted for review by the surveillance court.
1.3.7.– The admittedly understandable deflative purpose underlying Decree-Law no. 92 of 2024, as converted, would seriously affect the construction of the convicted person's rehabilitation path, adding "elements of uncertainty to the daily reality of detention, which translate into a surplus of affliction," contrary to Article 27, third paragraph, of the Constitution, also under the aspect of the humanity of the sentence, since, unreasonably, early release would transform into "an exhibited (but only hoped for) reward for participatory conduct, which [...] accrues semester by semester, but which the interested party cannot demand upon request, but only in specific circumstances and after long waits."
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Advocate General, requesting that the questions be declared "manifestly" unfounded.
2.1.– Although invoking the violation of constitutional parameters, the referring judge would essentially be soliciting a review by this Court of the expediency of the legislator's choices, to which, instead, belongs "the widest discretion [...] in matters of criminal policy and criminal law," except for the limit of non-manifest arbitrariness. The latter would not be exceeded in this case, as the option to subordinate the application for early release to a specific interest, other than those referred to in paragraphs 1 and 2 of Article 69-bis of the Penitentiary Code, would be the result of "a reasoned and reasonable assessment" by Parliament. The institution of early release, moreover, would not be constitutionally required, nor would the Constitution prescribe anything regarding the procedural modalities of the relevant application.
2.2.– Nor would the alleged conflict with Article 27, third paragraph, of the Constitution exist. The introduction of the requirement of a specific interest would not create an absolute barrier to the possibility for the convicted person to submit an application for early release, for example – as illustrated in the explanatory report accompanying the bill for the conversion of Decree-Law no. 92 of 2024 – to obtain the so-called dissolution of the aggregation of sentences.
The reference to this Court's Judgment no. 276 of 1990 would be irrelevant, as its assumptions would no longer be consistent with the current "penitentiary culture," which has "progressively updated the dynamics of the convicted person-Surveillance Magistrate relationship to the advantage of the former, emancipated from the necessary and unavoidable control of the latter over the correctness and effectiveness of his conduct, making him aware of the advantages that conduct conforming to rehabilitation programs can have on the granting of penitentiary benefits and on the quantum of sentence to be served itself."
The rehabilitative function of the sentence could be carried out irrespective of the convicted person's "semi-annual meeting" with the surveillance magistrate on the occasion of the early release application, as it could benefit from "other and different tools and opportunities for confrontation and control of the progress of the rehabilitation process."
In any case, the reform would not conflict with the principles affirmed in Judgment no. 276 of 1990, because the assessment regarding the granting of early release, even if it occurs at the final moment of serving the sentence, must always refer to each single six-month period.
It should also be considered that Article 5 of Decree-Law no. 92 of 2024, as converted, also introduced paragraph 10-bis into Article 656 of the Code of Criminal Procedure, according to which the execution order must indicate the sentence reductions for early release credits, thus informing the recipient of the potential reward discount connected to participation in the rehabilitation work. This legislative novelty would avert the risk, raised by the referring judge, of compromising the rehabilitative purpose pursued by early release, since the convicted person would be made "perfectly aware of the effective end of sentence if he follows the rehabilitation path of reintegration."
2.3.– The challenges regarding the violation of Article 3 of the Constitution would likewise be unfounded.
The challenged regulation would be peacefully inspired by a deflative purpose, and would not exceed the limit of manifest unreasonableness or arbitrariness, thus escaping the review of this Court. It would, rather, be a "reasonable and legitimate" legislative option, which still protects and enhances the interest in the rehabilitation of the convicted person, introducing only a different procedural regulation.
The latter would be characterized by "intrinsic reasonableness," as it would allow the surveillance magistrate to "enhance all those heterogeneous situations in which the provision may have some utility for the detainee," while at the same time preventing "repeated applications over time at fixed semi-annual intervals, but lacking immediate concrete utility, from prejudicing the efficiency of the judiciary, overloading the rolls of the Surveillance Judges" (reference is made to this Court's Judgment no. 77 of 2018 on the non-unlimited nature of the judicial resource).
3.– With order of 10 March 2025, registered no. 75 of the register of orders of 2025, the Surveillance Magistrate of Naples raised questions of constitutional legitimacy regarding Article 69-bis of Law no. 354 of 1975, as substituted by Article 5, paragraph 3, of Decree-Law no. 92 of 2024, as converted, in reference to Articles 3, 27 [third paragraph], and 111, seventh [should be: sixth] paragraph, of the Constitution, "insofar as the request for the benefit of early release is subordinated to the possibility of falling within the sentence limits to access alternative measures (the preceding 90 days) or to obtain release within the same period, or insofar as the detainee is required, for the evaluation of the request, to indicate the specific reasons for which the benefit itself is requested."
3.1.– The referring judge is seized of the application for early release submitted, for the period between 18 January 2024 and 18 January 2025, by N. S., detained at the Naples Secondigliano Penitentiary Institution.
The referring judge notes that the interested party is not in any of the conditions provided for by the amended Article 69-bis of the Penitentiary Code, because he cannot access alternative measures to detention or release within ninety days (since the final sentence end date is set for 24 October 2040), nor has he alleged a specific interest to support his application for early release. The latter should, therefore, be declared inadmissible, "with serious prejudice to the detainee's rehabilitation process." Hence the relevance of the questions.
3.2.– As for the non-manifest groundlessness, the referring judge observes the following.
3.2.1.– First, the referring judge recalls that, in the current constitutional order, the sentence has acquired a primary connotation of social rehabilitation, according to the imperative expressed by Article 27, third paragraph, of the Constitution (reference is made to this Court's Judgment no. 313 of 1990). For its part, the European Court of Human Rights has emphasized rehabilitation as a fundamental function of the sentence in European States and the detainee's right to resocialization, as an aspect of the protection of human dignity (reference is made to the Grand Chamber judgments of 9 July 2013, Vinters and Others v. the United Kingdom, and 26 April 2016, Murray v. the Netherlands). Early release contributes to this objective and constitutes "an institute typically aimed at treatment progression, in function of the rehabilitation of the convicted person."
Recalling the reasoning in this Court's Judgment no. 276 of 1990, the referring judge observes that early release was introduced into the penitentiary system with the aim of soliciting the detainee's adherence to the rehabilitation project and that the parameterization of sentence reductions over a semi-annual period is functional to this objective, providing a short-term incentive for the adoption of participatory conduct. Conversely, the prospect of obtaining "a benefit detached from immediate perception and temporally placed at the closure of the period of imprisonment, even many years away from the event," would disincentivize the convicted person's adherence to the treatment path, "nullifying, in the daily unfolding, the rehabilitation, constitutionally imposed."
The reform introduced by Decree-Law no. 92 of 2024, as converted, would break the synallagmatic logic underlying early release and functional to achieving the rehabilitative purpose, thus "separating daily participation in prison activities from the reward that the detainee expects to receive immediately for the reference six-month period" and creating "a gap between adherence to the rehabilitation work and the benefit to be granted with semi-annual imputation," to the prejudice of treatment progression and with the risk of "a significant downsizing of detainees' participatory attitudes."
3.2.2.– Within the framework of the amended Article 69-bis of the Penitentiary Code, the application for early release could only be submitted within the ninety days preceding the request for an alternative measure to detention, so that the institute would only be relevant "in an 'algebraic' sense," that is, as "instrumental to shortening the sentence, in order to obtain an alternative measure." Early release would thus assume a "servient function" with respect to alternative measures to detention, moving away from its primary purpose, which is the rehabilitation of the convicted person, in implementation of the provision under Article 27, third paragraph, of the Constitution.
By deferring the decision on early release to the ninetieth day preceding the accrual of the prerequisites for accessing an alternative measure to detention, or release, the challenged provision would irremediably affect the rehabilitative purpose of the institute, precluding the detainee from being aware, during the execution of the sentence, of the surveillance magistrate's assessment of the effectiveness of adherence to the recovery and resocialization path. Furthermore, postponing the moment of judicial review of early release would create "an objective difficulty, over time, in being able to have concrete elements that can anchor the facts and conduct held to the specific temporal context in which they occurred," thus making "a realistic and effective judgment on full adherence to the proposed treatment difficult or impossible, due to the temporal placement of six-month periods, now far in the past."
Ultimately, the amendment introduced by Decree-Law no. 92 of 2024, as converted, would be "in open contrast with the intent to incentivize participatory conduct," thus violating Article 27, third paragraph, of the Constitution, and disregarding the detainee's right to "choose the moment" in which to request an assessment from the magistrate on the conduct held in the reference six-month period, in order to establish "a direct evaluative relationship on his intramural actions," useful for guiding his conduct.
3.2.3.– The challenged regulation would also be contrary to the standard of reasonableness of Article 3 of the Constitution, as, by establishing a "structural link" between early release and the possibility of benefiting from alternative measures to detention, it would compress the rehabilitative function of the institute and deprive the detainee of the possibility of benefiting from a stimulus – that of having the sentence reduced in exchange for participation in the rehabilitation work – which constitutes "the true executive engine of daily rehabilitation."
Nor would this unreasonableness be eliminated by the possibility of submitting an application for early release indicating a "specific interest," pursuant to paragraph 3 of the challenged Article 69-bis, because this hypothesis would be limited to the case in which the detainee requests the "dissolution of the aggregation" of sentences, and would therefore presuppose the serving of the portion of the sentence related to the so-called prohibitive crime, resulting once again simply functional to accessing an alternative measure to detention or release in the subsequent ninety days.
In reality, there is a "strong link" between the right to social reintegration and the principle of substantial equality under Article 3, second paragraph, of the Constitution, as it is the Republic's task to configure the execution of the sentence in a manner suitable for the rehabilitation – and thus social reintegration – of those who engage in criminal conduct under conditions of economic and social disadvantage. Penal execution structures, on the other hand, constitute social formations pursuant to Article 2 of the Constitution, within which the guarantee of inviolable rights must be functional to allowing "forms of realization of the personality 'equal' to those of free persons," without detention being burdened with an unnecessary surplus of affliction beyond the execution of the sentence.
Rehabilitation – as prescribed by Article 1 of the Penitentiary Code and Article 1 of Presidential Decree no. 230 of 30 June 2000 (Regulation containing provisions on the penitentiary system and measures restricting and limiting liberty) – should aim at the social reintegration of the detainee, through a process to be initiated from the initial phases of criminal proceedings, and not only immediately before the "end of sentence," so that the interested party can gradually become aware of the fundamental values of social coexistence.
3.2.4.– The new wording of Article 69-bis would finally be problematic also "in light of [...] what is indicated by Article 111 [sixth paragraph] of the Constitution," which establishes the obligation to provide reasons for every judicial provision.
Indeed, since the reasoning is "the litmus test of concrete judicial knowledge," it would not be possible to correctly reason the provision on early release, which occurs near the deadline for requesting alternative measures to detention or release, as it is difficult to gather reliable data and information years after the periods under review; to the prejudice of the quality of the judicial decision.
4.– In this proceeding as well, the President of the Council of Ministers intervened, represented and defended by the State Advocate General, objecting to the inadmissibility and, in any case, arguing the unfoundedness of the questions.
4.1.– Regarding procedural aspects, the challenge related to Article 111, sixth paragraph, of the Constitution would be inadmissible, as this constitutional parameter, although invoked in the reasoning of the referral order, is not indicated in the operative part.
Likewise, the complaint regarding Article 3 of the Constitution would be flawed with inadmissibility, as the referring judge has not identified a tertium comparationis, that is, a "detainee [...] unreasonably discriminated against by the new regulation"; a regulation that, instead, does not preclude any person deprived of personal liberty from submitting a reasoned application for early release to the surveillance magistrate.
Finally, the Advocate General of the State objects to the referring judge's failure to attempt a constitutionally oriented interpretation of the challenged provision, observing that the notion of "specific interest" that must support the application for early release would be sufficiently broad to allow the surveillance magistrate to enhance "all those situations in which the provision may have some utility for the detainee, even within the scope of his treatment path," without requiring any "assessment of the soundness/adequacy of the interest."
4.2.– On the merits, the referring judge's challenges would, in any case, be unfounded.
4.2.1.– The amendment to Article 69-bis of the Penitentiary Code introduced by Article 5 of Decree-Law no. 92 of 2024, as converted, would be inspired by both deflative needs – aiming to "relieve the Surveillance Judiciary from an excessive number of applications lacking any practical utility for the detainee" – and by the will to give "certainty to the interested party regarding the processing times for applications." All this in a view of procedural rationalization, aimed at guaranteeing "more certain and contained times and an orderly management of requests both by the penitentiary administration and by the judicial offices." The normative change would also be capable of determining "a reassessment of the effective sequence of scientific observation of the detainee's personality, in the form of a constant verification of subjection to custodial treatment and the correlative documentation of the rehabilitation path."
4.2.2.– Article 69-bis of Law no. 354 of 1975 should be read in light of the contemporaneous amendments made to Article 656 of the Code of Criminal Procedure, under which the execution order must now indicate the sentence reductions for early release credits, thus making the recipient aware of the possible reward discount connected to participation in the rehabilitation work. The risk, raised by the referring judge, that postponing the decision on early release would disincentivize the detainee from maintaining participatory conduct in the treatment and thus nullify the rehabilitative content of the benefit would thus be averted. The reform intervention would thus remain faithful to the dictates of Judgment no. 276 of 1990, according to which the assessment on early release, even if occurring at the final moment of serving the sentence, must refer to the individual six-month periods in which the treatment was articulated.
In the face of the attribution to the Public Prosecutor of "incisive ex officio powers of intervention," and the express warning contained in the execution order regarding the benefits of adhering to the treatment proposal, the detainee's interest in "having constant and repeated knowledge of early release, according to timings and frequencies largely decided by the interested party" should be considered recessive.
4.2.3.– Paragraph 3 of Article 69-bis of the Penitentiary Code would also allow the detainee to submit an application for early release, in the presence of a specific interest, so that the surveillance magistrate could still examine applications that are useful to the interested party, while declaring inadmissible those that are useless and only intended to increase the workload of the judicial office, to the prejudice of the efficiency of the judiciary, a resource that is not unlimited (reference is made to this Court's Judgment no. 77 of 2018).
The new wording of Article 69-bis of the Penitentiary Code would constitute, ultimately, a "legitimate exercise" of the legislator's discretion, and would not show aspects contrary to Articles 3 and 27, third paragraph, of the Constitution.
4.2.4.– Article 111, sixth paragraph, of the Constitution would likewise not be violated, since the obligation to provide reasons for judicial provisions could not be considered violated by the mere circumstance that the assessment to be carried out concerns facts more or less remote in time.
The referring judge fails to emphasize Article 13 of the Penitentiary Code, which prescribes the scientific observation of the personality of the detained or interned person for the purpose, among others, of proposing a suitable reintegration program and the inclusion, in the personal file of the interested party, of the "general and particular indications of the treatment" and its developments and results; Article 63 of the Penitentiary Code, according to which the centers responsible must include the results of the observation in the personal file of the detained or interned person; Article 26, paragraph 5, of Presidential Decree no. 230 of 2000, under which, at the end of each six-month period of pre-trial detention and imprisonment, the judgment expressed by the management on the convicted person's participation in the rehabilitation work is noted, with particular reference to the commitment shown in taking advantage of the opportunities offered during treatment and maintaining correct and constructive relationships with operators, fellow inmates, family, and the external community. These informational elements would be available to the surveillance magistrate who must rule on early release, so that no cognitive deficit resulting from the postponement of the judicial review of the granting of this benefit could be feared.
5.– In the explanatory briefs, of a similar nature, the Advocate General represented that the Council of Ministers, in the session of 18 September 2025, approved a draft decree amending Presidential Decree no. 230 of 2000, aimed at implementing, among other things, Article 5 of Decree-Law no. 92 of 2024, as converted.
The contents of this decree that are relevant here, published in the Official Gazette and entered into force during the filing of this judgment, will be noted below, in point 4.5 of the Legal Considerations.
Legal Considerations
1.– With the order registered under no. 73 of the register of orders of 2025, the Surveillance Magistrate of Spoleto raised questions of constitutional legitimacy regarding Article 69-bis, paragraph 3, of the Penitentiary Code, as substituted by Article 5, paragraph 3, of Decree-Law no. 92 of 2024, as converted, in reference to Articles 3 and 27, third paragraph, of the Constitution, challenging it "insofar as it provides that the convicted person may submit an application for early release only when he has expressly indicated, under penalty of inadmissibility, in the relevant application, that he has a specific interest in obtaining the benefit, other than those referred to in paragraphs 1 and 2" of the same Article.
2.– With the order registered under no. 75 of the register of orders of 2025, the Surveillance Magistrate of Naples raised questions of constitutional legitimacy regarding Article 69-bis of Law no. 354 of 1975, as substituted by Article 5, paragraph 3, of Decree-Law no. 92 of 2024, as converted, in reference to Articles 3, 27, third paragraph, and 111, sixth paragraph, of the Constitution, "insofar as the request for the benefit of early release is subordinated to the possibility of falling within the sentence limits to access alternative measures (the preceding 90 days) or to obtain release within the same period, or insofar as the detainee is required, for the evaluation of the request, to indicate the specific reasons for which the benefit itself is requested."
3.– The two referral orders raise questions that are largely overlapping, so that the related proceedings deserve to be joined for the purpose of the decision.
Despite the different identification of the target of the challenges in the operative parts of the respective orders (only paragraph 3 for the Surveillance Magistrate of Spoleto, the entire Article 69-bis for the Surveillance Magistrate of Naples), both referring judges essentially complain about the necessity for the convicted person, under paragraph 3 of the amended Article 69-bis of the Penitentiary Code, to allege a specific interest to submit an application for early release, other than that connected to the calculation of the served sentence quantum for the purpose of accessing alternative measures or other benefits, or to the determination of the sentence end date in proximity thereto – interests, the latter, which the surveillance magistrate is obliged to consider ex officio, in the time frames indicated by paragraphs 1 and 2.
It follows that the constitutional legitimacy questions under examination must be considered limited precisely to the currently effective text of Article 69-bis, paragraph 3, of the Penitentiary Code.
4.– For a better understanding of the questions, a concise reconstruction of the normative framework in which the challenged regulation is set is appropriate.
4.1.– Pursuant to Article 54, paragraph 1, of the Penitentiary Code ("Early Release"), "[t]o the convicted person serving a sentence of imprisonment who has given proof of participation in the rehabilitation work, a reduction of forty-five days for each six-month period of sentence served shall be granted, as recognition of such participation, and for the purpose of his more effective reintegration into society."
This sentence reduction is functional not only to shortening the period of detention that the convicted person must serve, but also – as inferred from paragraph 4 of Article 54 of the Penitentiary Code – to shortening the measure of sentence that must have been served to be admitted to the benefits of reward permits, semi-liberty, and conditional release.
4.2.– Based on the original text of Article 69-bis of the Penitentiary Code – as introduced by Article 1, paragraph 2, of Law of 19 December 2002, no. 277 (Amendments to Law of 26 July 1975, no. 354, regarding early release) – early release was granted or denied by the surveillance magistrate upon application by the convicted person. Such application could be submitted whenever the convicted person deemed it appropriate: that is, after the accrual of each six-month period, or with more spaced out frequencies; where appropriate, also near the end of the sentence or the accrual of the terms for accessing one of the benefits mentioned in Article 54, paragraph 4, of the Penitentiary Code.
The new text of Article 69-bis of the Penitentiary Code, entirely substituted by Article 5, paragraph 3, of Decree-Law no. 92 of 2024, as converted, contemplates instead – as a general rule – a mechanism for ex officio verification of the existence of the prerequisites for early release.
Paragraph 1 more specifically provides that this verification shall be carried out by the surveillance magistrate "[u]pon any application for access to alternative measures to detention or other analogous benefits, with respect to which early release pursuant to Article 54, paragraph 4, is relevant in the calculation of the served sentence quantum."
In this way, the granting of early release – and the verification of the relevant prerequisites – becomes an ex officio prerequisite for the assessment of the detainee's application to access any measure or benefit to which the serving of a portion of the sentence is relevant. This application, moreover, may be submitted, pursuant to the second period of paragraph 1, no earlier than ninety days before the date on which the convicted person could access the measure or benefit, should the sentence reductions for early release credits for each six-month period served be recognized.
Paragraph 2 of the new text of Article 69-bis then establishes the obligation of the surveillance magistrate to proceed to the verification – still ex officio – of the existence of the prerequisites for granting early release, if they have not already been subject to assessment on the occasion of the applications referred to in paragraph 1, "[w]ithin the ninety-day period preceding the accrual of the end-of-sentence term to be served."
A residual hypothesis for granting early release upon the application of the convicted person himself is finally provided for by the new paragraph 3, the only one actually challenged by the referring judges (supra, 3). It provides for the power of the convicted person to submit the relevant application "when he has a specific interest, other than those referred to in paragraphs 1 and 2, which must be indicated, under penalty of inadmissibility, in the application itself."
4.3.– The explanatory report to the bill for the conversion of Decree-Law no. 92 of 2024 (Senate Bill 1183 - XIX Legislature), presented in the Senate, clarifies that the amendments provided for by Article 5 of that decree-law respond "primarily to the need to simplify the procedure for recognizing early release, both to relieve the surveillance offices of a series of tasks, and to give greater certainty to detainees regarding the accrual, during the execution of the sentence, of the benefit, and finally, to avoid the risk that the recognition occurs too far from the emergence of its prerequisites, with negative effects on access to other penitentiary benefits and on the identification of the final term of the sentence."
In particular, the amendment to Article 69-bis was illustrated as follows: "the verification of the effective existence of the right to the reduction, i.e., of the effective, positive, participation in the rehabilitation work, is shifted to the moments in which the reduction is effectively relevant in the concrete life of the detainee [...]. The relevant moments are constituted, principally [...], by the approach of the end-of-sentence term to be served, as identified by calculating the reductions provided for by Article 54" (Article 69-bis, paragraph 1), subject to the derogations represented by the submission by the detainee of applications for access to alternative measures to detention or other analogous benefits (paragraph 2) or in the case in which the detainee requests early release "for 'a specific interest,' other than those relating to the end of sentence or access to penitentiary benefits" (paragraph 3). This specific interest – the report continues – "must be indicated, under penalty of inadmissibility, in the application itself, precisely because it is a residual hypothesis, which has its reason for being only where the interest is not already protected by the provisions seen. An emblematic case is certainly that relating to the interest in the so-called 'dissolution of the aggregation': that is, the interest in ascertaining that, by calculating the reductions provided for by Article 54, the sentence relating to an offense that bars the application of certain institutes (other than those referred to in paragraph 1) has run."
4.4.– The normative amendment challenged by the referring judges is accompanied by further provisions, of which a brief account should also be given, within the limits of relevance for the purposes of these proceedings.
Paragraph 1 of Article 5 of Decree-Law no. 92 of 2024, as converted, inserted three paragraphs into Article 656 of the Code of Criminal Procedure. Among the new provisions, the tenth paragraph-bis of Article 656 of the Code of Criminal Procedure deserves to be highlighted here, due to its connection with the reformed Article 69-bis of the Penitentiary Code, according to which "[i]n the execution order the sentence to be served is indicated by calculating the reductions" as early release credits, "in such a way that the reductions are specifically indicated and the sentence to be served without reductions is also highlighted. The execution order shall [also] give notice to the recipient that [such reductions] shall not be granted if, during the period of execution of the sentence, the convicted person has not participated in the rehabilitation work."
The aforementioned explanatory report states that "[t]his provision has the dual purpose of stabilizing from the outset (in the execution order of the sentence) the six-month periods of interest and the related calculation of reward reductions, but also of promoting adherence to the rehabilitation program by the detainee, who has the opportunity to see all the reductions already calculated, but, at the same time, is advised that, for them to become effective, he must participate in the rehabilitation work."
Finally, paragraph 4 of Article 5 of Decree-Law no. 92 of 2024, as converted, delegated to a governmental regulation the amendments to Presidential Decree no. 230 of 2000 necessary to ensure coordination with the new regulation, and in particular to allow the surveillance magistrate to promptly carry out the assessments relating to early release, which are now to be carried out – as a rule – ex officio, at the expiry of the terms indicated in the first two paragraphs of the amended Article 69-bis of the Penitentiary Code, which are not the subject of the referring judges' challenges.
4.5.– On 25 November 2025, the regulation in question was published in the Official Gazette (Presidential Decree of 3 October 2025, no. 176, entitled "Regulation amending Presidential Decree no. 230 of 30 June 2000, regarding the procedure for granting early release and telephone correspondence of detainees and interned persons").
The regulation amends, as far as is relevant here, Article 26 of the Penitentiary Regulation, which governs the personal file of the detained or interned person. In particular, after paragraph 5 – which provides that at the end of each six-month period of pre-trial detention and imprisonment, the judgment expressed by the management on the indicators attesting to the convicted person's participation in the rehabilitation work is noted in the personal file of each detainee (and, today, also of each person serving a sentence externally) – a new paragraph 5-bis has been inserted, stating that "[w]hen the judgment expressed is negative, it shall be communicated to the interested party" (Article 1, paragraph 1, letter a, number 5, of Presidential Decree no. 176 of 2025).
This innovation is directly linked to an amendment of Article 103 of the Penitentiary Regulation, which sets out provisions regarding sentence reductions for early release. The new paragraph 1-ter of Article 103 of the Penitentiary Regulation states, in fact, that "[i]n the cases referred to in Article 26, paragraph 5-bis" (and therefore in cases of a negative judgment on participation in the rehabilitation work), "the interested party is entitled to submit an application to the surveillance magistrate pursuant to Article 69-bis, paragraph 3, of the Law. In this case, the application must be submitted within thirty days of the communication of the judgment" (Article 1, paragraph 1, letter d, number 3, of Presidential Decree no. 176 of 2025).
As emerges from the opinion of the Council of State of 1 September 2025, on the draft regulation produced by the State Advocate General, the explanatory report for this act clarifies that the intervention concerning Articles 26, paragraph 5-bis, and 103, paragraph 1-ter, of the Penitentiary Regulation "aims to overcome the doubts raised, including through a question of constitutional legitimacy, regarding the fact that the detainee (compared to the past when he chose the times to request early release) may not be aware, during the execution of the sentence, of the assessment given to his participation in the rehabilitative treatment path. In this way, instead, since the law already provides that the application can be made when the convicted person has a qualified interest in the decision, this interest is specifically identified in the fact that the administration has given a negative judgment on his rehabilitative treatment path."
5.– All the foregoing premised, it is necessary first to assess the admissibility aspects of the questions raised.
The State Advocate General raised various objections of inadmissibility concerning only the questions raised by the order of the Surveillance Magistrate of Naples, registered under no. 75 of the register of orders of 2025.
However, none of these objections are founded.
5.1.– Firstly, the State defense objects to the inadmissibility of the question raised with reference to Article 111, sixth paragraph, of the Constitution, since this constitutional parameter, even if invoked in the reasoning part of the referral order, is not mentioned in the operative part.
The objection is unfounded.
The constant case law of this Court holds that the identification of the parameters of the constitutional legitimacy question must be carried out based on a "combined reading of the reasoning and the operative part of the referral order" (Judgment no. 94 of 2025, point 6 of the Legal Considerations), and that "discrepancies between the reasoning and the operative part [...] can be resolved through the use of ordinary interpretative criteria, when the effective will of the referring judge emerges from the coordinated reading of the two parts of the act" (Judgment no. 115 of 2025, point 4.3.1. of the Legal Considerations, and numerous precedents cited therein in the same sense).
The referral order under examination makes a precise reference to the obligation to provide reasons for every judicial provision established by Article 111, sixth paragraph, of the Constitution, arguing about the difficulty of providing a precise reasoning for the provision on early release years after the periods under review. This is sufficient for the question to be considered duly proposed.
5.2.– Secondly, the Advocate General of the State objects to the inadmissibility of the complaint regarding Article 3 of the Constitution, because the referring judge has not identified a tertium comparationis, that is, a "detainee [...] unreasonably discriminated against by the new regulation"; a regulation that, in fact, does not preclude any person deprived of personal liberty from submitting a reasoned application for early release to the surveillance magistrate.
This objection is also unfounded, since the referring judge invokes Article 3 of the Constitution not under the aspect of unreasonable disparity of treatment between two similar situations, but under the different aspect of the intrinsic unreasonableness of the new regulation with respect to the objectives of the early release institute.
5.3.– Finally, the Advocate General of the State objects to the referring judge's failure to attempt a constitutionally oriented interpretation of the challenged provision, observing that the notion of "specific interest" that must support the application for early release would be sufficiently broad to allow the surveillance magistrate to enhance "all those situations in which the provision may have some utility for the detainee, even within the scope of his treatment path," without requiring any "assessment of the soundness/adequacy of the interest."
Nor can this objection be accepted.
In general, it is worth reiterating that, according to the constant case law of this Court, "when the referring judge has consciously deemed that the wording of the challenged provision imposes a specific interpretation and prevents others, possibly in conformity with the Constitution, the verification of the relevant hermeneutic solutions does not pertain to the admissibility level, and is rather an assessment concerning the merits of the questions" (Judgment no. 150 of 2022, point 3 of the Legal Considerations, most recently recalled by Judgment no. 141 of 2025, point 4.1. of the Legal Considerations, and further precedents cited therein).
In the case under examination, moreover, the entire logical framework of the referral order aims to challenge the legislative choice to make the possibility for the detainee to submit an application for early release only residual, and in particular to preclude him, in this way, from the possibility of obtaining the relevant provision semester by semester, so as to have constant knowledge of the "progress status" of his treatment path. The referring judge therefore hopes for a decision by this Court that ensures a result opposite to the objective pursued by the legislator, punctually indicated in the report on the bill for the conversion of Decree-Law no. 92 of 2024 (supra, 4.3) and which is expressed in the clear wording of the new provision.
To reach such a result through hermeneutic means would therefore amount, not to a constitutionally conforming interpretation, but to an interpretation contra legem, which is absolutely precluded to the judge; the latter is instead required – if he deems that no meanings compatible with constitutional principles can be inferred from the provision – to raise an incident of constitutional legitimacy (on this point, most recently, Judgment no. 142 of 2025, point 9.2. of the Legal Considerations, where it is emphasized – based on other precedents cited therein – that "the textual data constitutes an insurmountable limit in the presence of which the attempt at conforming interpretation necessarily yields to the review of constitutional legitimacy").
This is precisely what the referring judge has done.
6.– On the merits, the questions are founded, with reference to all the parameters invoked.
6.1.– The detailed referral orders, which have been exhaustively described in the Facts Considered, revolve around the central argument that the new regulation of Article 69-bis, paragraph 3, of the Penitentiary Code seriously compromises the functionality of the early release institute in promoting the convicted person's rehabilitation process, thus contradicting the very purpose of the institute. Consequently, there is a breach of Articles 27, third paragraph, and 3 of the Constitution.
The Surveillance Magistrate of Naples alone also believes that the challenged provision violates Article 111, sixth paragraph, of the Constitution, by making it difficult – due to the time lapse, which could be very extensive in practice, between the six-month period under review and the moment of judgment – to fulfill the constitutional obligation to provide reasons for the relevant judicial provision.
6.2.– The State Advocate General opposes this perspective with essentially three arguments.
Firstly, the legislator's choice falls within an area of discretion, not subject to review based on assessments – ultimately – of mere expediency, as are those made by the referral orders.
Secondly, the State defense emphasizes that the challenged regulation preserves the principle of assessment referring to the individual six-month periods of sentence, merely shifting the verification of the prerequisites for early release to a time close to when the sentence reductions become practically useful for the convicted person: that is, in the imminence of the end of the sentence or the possibility of access to an alternative measure or a penitentiary benefit that presupposes the serving of a portion of the sentence, on which the reductions can be made. Such a shift would not change the substance of the benefit in question and its broadly rewarding logic, but would simultaneously be functional to alleviating the workload of the surveillance judiciary, thus allowing it to respond more promptly to the requests of the detainees themselves.
Finally, the State Advocate General emphasizes that the new paragraph 10-bis of Article 656 of the Code of Criminal Procedure, introduced by Article 5, paragraph 1, of Decree-Law no. 92 of 2024, as converted (supra, 4.4.), now provides that the execution order of the sentence expressly indicates, alongside the sentence to be served under the conviction, also the reductions that the convicted person may obtain as early release credits, giving specific notice to the recipient that such reductions will not be granted if, during the execution of the sentence, he has not participated in the rehabilitation work.
6.3.– In this regard, this Court observes that the legislator's broad discretion in configuring procedural rules, even in penitentiary matters, cannot authorize a breach of the principle of the rehabilitative purpose of sentences – the only purpose expressly mentioned by the Constitution, although not in an exclusionary sense of the others to which sentences are devoted.
The tension of sentences towards the objective of the convicted person's rehabilitation is the subject of a precise duty ("[t]he sentences [...] must aim at the rehabilitation of the convicted person"), which Article 27, third paragraph, of the Constitution places on all institutions and powers that exercise punitive authority in the Italian legal system, starting with the legislator. Rehabilitation – which Judgment no. 179 of 2017 defined as a synthetic expression that includes the objectives of "recovery, reparation, reconciliation, and social reintegration" (point 4.4. of the Legal Considerations) – indicates "one of the essential and general qualities that characterize the sentence in its ontological content, and accompanies it from its birth, in the abstract normative provision, until it is concretely extinguished" (Judgment no. 313 of 1990, point 8 of the Legal Considerations). This purpose cannot be sacrificed in favor of any other, even legitimate, purpose of the sentence (Judgment no. 139 of 2025, point 9.1. of the Legal Considerations, as well as, previously, Judgment no. 149 of 2018, point 7 of the Legal Considerations, and further references therein).
Early release is a key institute in pursuing this constitutionally necessary purpose of the sentence.
As early as Judgment no. 274 of 1983, in declaring the unconstitutionality of excluding life-sentence prisoners from early release (at least for the purpose of early access to conditional release), this Court highlighted the functionality of the institute in promoting the rehabilitative purpose of the sentence (point 4 of the Legal Considerations). The subsequent Judgment no. 276 of 1990 further emphasized that early release is aimed at "soliciting the adherence and participation in the rehabilitation action of subjects subject to treatment," through the recognition of the right to a sentence reduction for each six-month period served, "during which the detainee has given proof of concretely wishing to participate in the rehabilitation work." The logic of this mechanism implies – the judgment continued – the "prospect of a reward to be seized in a short period of time, provided that in that time he manages to adhere to the rehabilitative action" (point 3 of the Legal Considerations).
Moreover, Judgment no. 17 of 2021 highlighted "the importance of a timely assessment of the conduct held by the convicted person, starting from the initial periods of his detention, so that stable attitudes of participation in the rehabilitative offer are consolidated, in terms of a true habit, immediately productive of favorable effects" (point 2 of the Legal Considerations; on the "powerful stimulus" to the rehabilitation work represented by the semi-annual sentence reductions as early release credits, see also, again, Judgment no. 149 of 2018, point 6 of the Legal Considerations).
6.4.– In light of these precedents, this Court observes that the current mechanism of global assessment of the prerequisites for early release relating to each six-month period in an advanced stage of sentence execution, in proximity to the moment when the convicted person can immediately benefit from the sentence reductions (with respect to the anticipation of the end of sentence or access to alternative measures and penitentiary benefits), removes the periodic verification of the quality of the concrete individual treatment path, which had hitherto been ensured by the possibility of a fragmented assessment of the prerequisites for early release, semester by semester, solicited by an application from the detainee. Such verification, if positive, immediately ensured the interested party the right to a sentence reduction: a reduction, in fact, of which he would only benefit in the future, but on which he could rely with certainty from the outset (subject only to the exceptional possibility of a revocation, under the stringent conditions provided for by Article 54, paragraph 3, of the Penitentiary Code, as amended by Judgment no. 186 of 1995).
As noted during the preparatory work for the reform, the recognition of the reduction for each six-month period by the surveillance magistrate "reassures the detainee because it provides him with a concrete and periodically updated perspective regarding his end of sentence, and, in this way, helps to temper the tensions that incarceration produces; which also benefits the security and quality of life within penal institutions" (text of the report presented by the President of the Surveillance Court of Cagliari to the Justice Committee of the Senate in the hearing of 10 July 2024).
Indeed, the mechanism of fragmented verification regarding the positive outcome of early release applications has, until recently, constituted an important stimulus for the detainee to continue on the path of change undertaken, through the progressive anticipation, which was thus presented to him, of the end of the sentence and the deadline for accessing benefits. This is in full consistency with those characteristics of progressiveness and flexibility of the sentence that derive from the rehabilitative principle itself, and which are realized in a twofold specular responsibility: that of the convicted person, called to "undertake a path of critical review of his past and reconstruction of his personality, in line with the minimum requirements of respect for the fundamental values on which civil coexistence is founded"; and the correlative responsibility of the penal system to stimulate the convicted person to undertake and continue this path, gradually bringing him closer to the benefits aimed at promoting his progressive reintegration into society (Judgment no. 149 of 2018, points 5 and 7 of the Legal Considerations, and further references therein).
Furthermore, as the referring judges emphasize, even the eventual denial of early release with reference to a single six-month period did not constitute an irreparable failure of the treatment path, but constituted in itself a stimulus for the convicted person to modify his conduct as soon as possible, so as to obtain the sentence reduction at the subsequent semi-annual deadline. All this within a path in which the convicted person should ideally be helped – through constant dialogue with the surveillance magistrate and the personnel of the penitentiary administration, as well as with the volunteers who dedicate their commitment daily to Italian prisons – to rediscover in himself the personal resources indispensable for realizing the process of change ultimately aimed at by Article 27, third paragraph, of the Constitution.
The regulation challenged here has cancelled all these periodic verifications, leaving the convicted person uncertain about the merit of the path taken in the meantime, or conversely its inadequacy with respect to the expectations of the legal system. And this until the moment when the potential rewards become concretely usable in terms of reductions of the sentence to be served: a moment, however, when the convicted person is no longer able to effectively correct his conduct.
6.5.– The objective pursued by the legislator, on which the State Advocate General insists in his defense, of alleviating the workload of the surveillance judiciary, is indeed appreciable, given the known, very serious delays in the resolution of pending cases: starting with those concerning the enormous number of so-called "suspended free persons" – that is, those sentenced to prison terms not exceeding four years, who remain for years awaiting the decisions of the surveillance court on their application for an alternative measure to detention – on which this Court has already had occasion to draw the legislator's urgent attention (Judgment no. 84 of 2024, point 3.3.2. of the Legal Considerations).
However, such an interest in the prompt resolution of pending proceedings, which is itself of constitutional relevance (Article 111, second paragraph, of the Constitution), cannot be pursued by methods that result – as in the case under examination – in serious prejudice to the rehabilitative purpose of the sentence.
6.6.– This Court therefore holds that the challenged regulation – by precluding the convicted person from submitting an application for early release in the absence of a "specific interest" other than that in determining the end of the sentence and the deadline for accessing alternative measures or penitentiary benefits – violates the principle of the rehabilitative purpose of the sentence under Article 27, third paragraph, of the Constitution, and proves discordant with the very purpose of the early release institute, conceived by the legislator of the penitentiary code as a tool capable of favoring that constitutional purpose, also integrating with the principle of the "minimum necessary sacrifice" of personal liberty, which the constant case law of this Court deduces from the particular constitutional relevance of personal liberty (Judgment no. 139 of 2025, point 9.1. of the Legal Considerations, and further references therein).
This also determines an evident incongruity of the regulation with respect to its purpose: which constitutes a hypothesis of irrazionalità intra legem, attributable to the category of unreasonableness vices under Article 3 of the Constitution (Judgments no. 38 of 2025, point 4.3.1. of the Legal Considerations; no. 95 of 2024, point 8 of the Legal Considerations; no. 197 of 2023, point 5.5.4. of the Legal Considerations; no. 223 of 2022, point 12 of the Legal Considerations; no. 195 of 2022, point 8 of the Legal Considerations).
As found by the Surveillance Magistrate of Naples, moreover, the challenged regulation is also discordant with Article 111, sixth paragraph, of the Constitution, by making it arduous for the judge to fulfill his constitutional duty to provide reasons for the provision that grants or denies sentence reductions as early release credits at a distance, potentially, of many years from the six-month period to which each of them refers, based on reports concerning which it becomes practically very difficult to ask for clarifications from the penitentiary administrations under which the convicted person was under care. With the related difficulty for the convicted person himself to effectively exercise his right to defense, given the difficulty of producing evidence of his participation in the rehabilitation work years after the six-month periods under review.
6.7.– It remains, at this point, to examine whether and to what extent the other regulatory innovations introduced by Decree-Law no. 92 of 2024, as converted, and then by Presidential Decree no. 176 of 2025, have the effect of eliminating the established unconstitutionality vices.
6.7.1.– Starting with the interventions on Article 656 of the Code of Criminal Procedure, they can be summarized in the express indication, in the execution order of the sentence, of the sentence reductions as early release credits from which the convicted person may benefit, accompanied by the warning that these reductions will not be granted in case of non-participation in the rehabilitation work.
This Court holds that the obligation to provide this information to the convicted person from the outset, moreover already derivable from the mere reading of the normative text, does not compensate for the loss of that periodic verification that was guaranteed by the possibility of obtaining, for the entire course of sentence execution, a precise feedback on the progress of the treatment path, ensured by the assessment ideally expressed by the surveillance magistrate at the end of each six-month period. Only this individualized assessment is, in fact, capable of signaling the specific critical issues found in the six-month period, and of allowing the convicted person himself – also through consultations with the magistrate and the penitentiary administration – to overcome these critical issues.
6.7.2.– The discussion concerning the impact on the present questions of the novelty represented by the amendments to the Penitentiary Regulation, and in particular of the combined provisions of the new paragraphs 5-bis of Article 26 and 1-ter of Article 103, of which an account was given above (supra, 4.5.), is necessarily more articulated.
As a result of these amendments, the convicted person must now be communicated the negative judgment expressed by the prison management on his participation in the rehabilitation work in relation to each six-month period. In this case, the convicted person is considered to hold a "specific interest" pursuant to the challenged Article 69-bis, paragraph 3, of the Penitentiary Code, which entitles him to submit, within the following thirty days, an application for early release in relation – evidently – to the specific six-month period for which the negative judgment was expressed.
Such a mechanism certainly attenuates the points of friction with the rehabilitative purpose of the sentence, with intrinsic unreasonableness, and with the principles of "due process" in the execution phase of the sentence, highlighted so far, by allowing the convicted person to immediately request a judicial review, in light of his own defense submissions, relevant for the purpose of ascertaining the prerequisites for early release in relation to the individual six-month period.
However, such a mechanism, as designed, continues to present serious incongruities, which result in leaving the detainee, who has not received an unequivocal negative assessment from the administration, in uncertainty about his real end of sentence (and the deadlines for accessing alternative measures and benefits). In this regard, it cannot be overlooked that the assessment regarding the existence of the prerequisites for early release rests, according to the law, solely with the surveillance magistrate: who, certainly, will have to carefully consider the judgment communicated to him by the penitentiary administration, within the framework, however, of an assessment that he will have to carry out autonomously, based on parameters also additional to the periodic reports of the penitentiary administration. Case law of the Supreme Court is indeed consistent in emphasizing the need to consider, in the assessment of the convicted person's participation in the rehabilitation work, multiple elements in addition to the feedback from the penitentiary administration (Court of Cassation, First Criminal Section, judgment of 28 March - 3 July 2025, no. 24506, and further precedents therein, as well as First Criminal Section, judgment of 12 July 2018 - 22 January 2019, no. 2886). This could lead him to deny sentence reductions even in the presence of a non-negative (or not entirely negative) judgment from the administration, and vice versa.
In other words, what matters to the convicted person for the purpose of recognizing sentence reductions for each six-month period is the surveillance magistrate's assessment, not the administration's. Hence his persistent interest, in terms of effectiveness of the overall rehabilitation path, in soliciting this assessment semester by semester, even in the hypothesis that he is not communicated a negative judgment by the administration.
Hence the insufficiency of the corrective measures to the penitentiary regulation introduced by Presidential Decree no. 176 of 2025 to remedy the breaches highlighted above in the challenged legislative regulation.
All further aspects of the challenge raised by the referral orders are absorbed.
7.– The reductio ad legitimitatem of the challenged regulation is possible through the removal, in paragraph 3 of the amended Article 69-bis of the Penitentiary Code, of the entire second part of the provision that conditions the possibility for the convicted person to submit an application for early release on the existence of a specific interest ("when he has a specific interest, other than those referred to in paragraphs 1 and 2, which must be indicated, under penalty of inadmissibility, in the application itself").
The survival of the initial proposition ("The convicted person may submit an application for early release") will thus ensure the convicted person the possibility of submitting the application at any time in relation to the six-month period or periods already accrued.
Instead, the obligation – introduced by Decree-Law no. 92 of 2024, as converted – to assess ex officio the prerequisites for granting early release in relation to each six-month period, if not already carried out in response to prior applications by the convicted person, in the time frames provided for by the first two paragraphs of Article 69-bis of the Penitentiary Code, which are not the subject of the referring judges' challenges, remains firm.
for these reasons
THE CONSTITUTIONAL COURT
having joined the proceedings,
declares the unconstitutionality of Article 69-bis, paragraph 3, of Law of 26 July 1975, no. 354 (Provisions on the penitentiary system and the execution of custodial and liberty-restricting measures), as substituted by Article 5, paragraph 3, of Decree-Law of 4 July 2024, no. 92 (Urgent measures concerning the penitentiary system, civil and criminal justice, and Ministry of Justice personnel), converted, with amendments, into Law of 8 August 2024, no. 112, limited to the words "when he has a specific interest, other than those referred to in paragraphs 1 and 2, which must be indicated, under penalty of inadmissibility, in the application itself."
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 20 October 2025.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Reporting Judge
Igor DI BERNARDINI, Registrar
Filed with the Registry on 29 December 2025
The anonymized version conforms, in text, to the original