Sentenza n. 202 del 2025

Judgment No. 202 of 2025 - AI translated

JUDGMENT NO. 202

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

is 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 pronounced the following

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 609-octies of the Penal Code, initiated by the Preliminary Hearing Judge of the Juvenile Court of Milan, in the criminal proceedings against M. T., with an order dated February 4, 2025, registered under no. 49 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 13, special first series, of the year 2025.

Heard in the deliberative chamber on October 20, 2025, the Reporting Judge Filippo Patroni Griffi;

deliberated in the deliberative chamber on October 20, 2025.

Facts Considered

1.− With the order registered under no. 49 of the register of orders for 2025, the Preliminary Hearing Judge of the Juvenile Court of Milan raised questions of constitutional legitimacy, with reference to Articles 3 and 27 of the Constitution, concerning Article 609-octies of the Penal Code – which punishes group sexual violence – in the part where it does not provide that, in cases of lesser gravity, the penalty may be reduced by an amount not exceeding two-thirds.

1.1.− The referring judge states that he must rule within the scope of a summary proceeding where the indictment concerns the crime under Articles 110, 628, first and third paragraphs, number 1), of the Penal Code, and the crime under Article 609-octies, first and second paragraphs, in relation to Article 609-bis, first paragraph, of the Penal Code, against a minor, accused of having approached a boy on a bus and induced him to follow him, under the pretext of consensual sexual acts. Upon arriving at an abandoned building, where two other youths (one a minor and the other unidentified) had joined them, the lured youth was robbed of his mobile phone, under the threat of a knife, and then groped. The victim left and returned to the location with law enforcement officers, where the defendant and one of the two accomplices were found. The defendant was therefore charged with robbery and group sexual violence.

1.2.− Regarding relevance, the originating judge considers the challenged provision to have a direct and current bearing on the final determination of the proceedings.

This is because the defendant is called to answer for the crime under Article 609-octies, first and second paragraphs, number 1), of the Penal Code, a provision under which the conduct held by him, together with two other persons, consisting of "groping areas certainly recognized as erogenous,” falls. Nor are there grounds to recognize the mitigating circumstance under the fourth paragraph of the cited article, as it must be excluded that the defendant contributed with a marginal or very slight contribution, as required by the case law of the Court of Cassation to constitute the aforementioned circumstance.

However, the prerequisites for applying the mitigating circumstance under Article 609-bis, third paragraph, of the Penal Code, are met, as this involves a situation where – in line with the jurisprudence developed in this area – there would have been a minimal restriction of the victim's sexual freedom, as evidenced by the methods of execution and the circumstances of the action, based on a global assessment of the event, including the degree of coercion exerted on the offended party, their physical and psychological condition, the psychological characteristics assessed in relation to age, the extent of the violation of sexual freedom, and the harm caused, including psychological harm. To this end, it is noted that the offended party was not forced, through violence or threat, to enter the abandoned building but did so following some flirtatious approaches received from one of the three perpetrators of the conduct under contestation; the threats directed at him inside did not concern the sexual violence suffered in any way but rather the theft of his mobile phone (a circumstance that formed the basis for the charge of aggravated robbery); he was not stripped, and the groping occurred over his clothes for a very limited time. He then left the building and was able to immediately seek help from passersby; he requested the intervention of law enforcement officers and returned to the building with them, indicating two of the three perpetrators still present at the scene; he did not require medical treatment, and it does not appear from the documents acquired in the file that he subsequently required psychological support.

However, even if the act of group sexual violence just described could be deemed to be of "lesser gravity” – the Preliminary Hearing Judge continues – the mitigating circumstance provided for in Article 609-bis, third paragraph, of the Penal Code, cannot be applied.

An extensive interpretation of this provision to the case at hand would be prevented by the literal wording and the interpretation provided by the case law of the Court of Cassation and the Constitutional Court. According to the latter, this is particularly supported by the consideration that Article 609-octies of the Penal Code in no way refers to the third paragraph of Article 609-bis of the Penal Code, whereas, where the legislature intended to extend the mitigating circumstance de qua to hypotheses different from the basic offense, it expressly provided for it (as in the case of Article 609-quater of the Penal Code).

Having established, in these terms, the impossibility of reaching a constitutionally-oriented interpretation, the referring judge reiterates the relevance of the issues under examination, excluding that the circumstance that aggravated robbery is also being prosecuted in the same proceedings could affect this conclusion. This is because, in the present case, the mitigating circumstance of minority age provided for under Article 98 of the Penal Code could well be recognized on an equivalent basis, and since the continuity between the ascribed crimes could likewise be recognized, in light of the criteria indicated by the Court of Cassation, United Criminal Sections, judgment of February 28-June 13, 2013, no. 25939, the more serious crime would certainly be identified as that of unaggravated group sexual violence (whose statutory penalty, based on the balancing of circumstances, ranges from eight to fourteen years of imprisonment, higher than that provided for unaggravated robbery, given the balancing of circumstances, from five to ten years of imprisonment plus a fine).

1.3.− Having established the relevance, the referring judge frames the constitutional legitimacy issues by drawing upon the previous rulings of this Court which, in two decisions, Order no. 170 of 2006 and Judgment no. 325 of 2005, rejected doubts of constitutional legitimacy raised regarding the penalty for group sexual violence.

In light of this review, the Preliminary Hearing Judge of the Juvenile Court of Milan sets out the novel elements that justify submitting the issue to this Court again, referencing, in particular, the tightening of the statutory penalty range for the crime in question introduced by Law no. 69 of July 19, 2019 (Amendments to the Penal Code, the Code of Criminal Procedure, and other provisions concerning the protection of victims of domestic and gender-based violence).

The referring judge recalls that the increases made by this latter amendment to the penalty treatment are calibrated differently for sexual violence under Article 609-bis of the Penal Code and for group sexual violence under Article 609-octies of the Penal Code. The statutory limits for the former crime have increased, respectively, from five and ten years to six and twelve years of imprisonment, representing an increase of 20 per cent for both the minimum and the maximum; the statutory limits for the latter crime have increased, respectively, from six and twelve years to eight and fourteen years of imprisonment, representing an increase of 17 per cent for the maximum and 33 per cent for the minimum.

In the face of this tightening, no mechanism for mitigation for cases of lesser gravity was provided, which is considered contrary to the principles enshrined in Articles 3 and 27 of the Constitution.

Having established this, the Milanese Court provides a brief overview of the hypotheses in which this mitigating circumstance is statutorily provided. Reference is then made to the aforementioned crimes of sexual violence (Article 609-bis, third paragraph, Penal Code) and sexual acts committed with minors (Article 609-quater, sixth paragraph, Penal Code); as well as other felonies – which the referring judge himself excludes can serve as tertium comparationis – such as kidnapping for the purpose of coercion (Article 289-ter, third paragraph, Penal Code); crimes against the security of the State (Article 311 Penal Code); a large portion of crimes against the public administration (those indicated by Article 323-bis Penal Code); crimes against cultural heritage (Article 518-septiesdecies Penal Code); drug-related offenses (Article 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990, containing the "Consolidated Text of Laws on the discipline of narcotics and psychotropic substances, prevention, treatment, and rehabilitation of drug addiction states”); as well as, following the interventions of this Court, the crimes of extortion (Judgment no. 120 of 2023) and kidnapping for the purpose of extortion (Judgment no. 68 of 2012). It is further specified that the same underlying reason also inspired, among others, the judgments of this Court no. 40 of 2019 (which declared Article 73, paragraph 1, of Presidential Decree no. 309 of 1990 unconstitutional, as it provided for a minimum statutory penalty of eight years of imprisonment instead of six years) and no. 141 of 2023 (which declared the unconstitutionality of Article 69, fourth paragraph, of the Penal Code, in the part where it prohibits the mitigating circumstance under Article 62, number 4, of the Penal Code, from prevailing over recidivism under Article 99, fourth paragraph, of the Penal Code).

From this overview, the originating judge deduces "the image of a system that […] is coherent and reasonable, because it provides ex ante (or, in other words, allows the judge ex post to use) mechanisms that essentially allow the penalty to be adjusted to the concrete characteristics of the act, also considering that many of the aforementioned crimes, all of which provide for a mitigating circumstance, are punished with statutory penalties of considerable significance.”

In light of these arguments, he deems "unjustified, unreasonable, and ultimately, violative of Article 3 of the Constitution” the "impossibility for the judge to temper the (severe) statutory penalty provided for by Article 609-octies of the Penal Code with a specific mitigating circumstance for cases of lesser gravity.”

Having stated this, the Preliminary Hearing Judge advances further arguments.

Starting from the consideration that not all the cited offenses can serve as a tertium comparationis, he identifies two (the offenses under Articles 609-bis and 609-quater of the Penal Code), emphasizing that they are "offenses partially overlapping in their legal objective (having, as a common denominator, precisely the commission of sexual acts), which protect the same legal interest, included in the same title, chapter, and section of the Code, characterized by an evolutionary parallelism in their respective penalty treatments.”

Adding to this, the differential treatment resulting from the lack of provision for the mitigating circumstance for cases of lesser gravity cannot be considered justified by the "objective difference between the two offenses (on the one hand, sexual violence committed by a single person; on the other, sexual violence committed by multiple persons),” since this difference is already valued by the legislator through the provision of two completely different statutory ranges (from six to twelve years of imprisonment in the case under Article 609-bis of the Penal Code; from eight to fourteen years of imprisonment in the case under Article 609-octies of the Penal Code).

The originating judge stresses that the gap between the penalty treatment for the less serious hypotheses of the two offenses under Articles 609-bis and 609-octies of the Penal Code is significantly and unreasonably wider than that between the non-less serious hypotheses of the same offenses. For non-less serious acts, the difference in penalty treatment between the two offenses is two years, whereas for acts of lesser gravity, for which the judge may apply the reduction of up to two-thirds only in the hypothesis under Article 609-bis of the Penal Code, the difference can rise to as much as six years of imprisonment; a difference which is, therefore, equal to 300 per cent compared to the difference between the non-less serious acts.

This disproportion "between offenses that are not equal or overlapping, but analogous and […] suitable for making a relevant comparison under Article 3 of the Constitution” should, therefore, according to the referring Panel, lead to a declaration of unconstitutionality of Article 609-octies of the Penal Code "in the part where it does not provide that in cases of lesser gravity the penalty shall be reduced by an amount not exceeding two-thirds.”

The lack of proportionality of the penalty would also result in its contravention of its rehabilitative purpose under Article 27 of the Constitution, which would be fatally hindered by the imposition of a disproportionate sanction and, for that reason alone, perceived as unjust by the convicted person. This consideration is all the more relevant in juvenile proceedings, given that the constitutional principle expressed in Article 31, second paragraph, of the Constitution requires the adoption of a juvenile justice system characterized by the predominant rehabilitative need.

2.− The President of the Council of Ministers did not intervene in the proceedings, nor did the defendant appear therein.

Considerations in Law

1.1.− The referring judge, after summarily describing the facts of the case, specifies that the methods and circumstances of the conduct and the modest extent of the acts of sexual violence committed against the offended party (the threats did not concern the sexual sphere but the theft of the mobile phone, and the violence consisted, in particular, in groping the intimate parts, over the clothing, for a very brief time) would make the mitigating circumstance for cases of lesser gravity applicable, if it were also applicable to group sexual violence.

On the basis of this premise, the originating judge complains of the unreasonableness and lack of proportionality of the penalty provided for by Article 609-octies of the Penal Code which, in the absence of a mechanism for mitigation for cases of lesser gravity, in its excessive severity, also considering the significant harshness of the minimum statutory penalty (equal to eight years of imprisonment) and the normative scope of the provision, precludes him from graduating the punitive treatment, as is instead permitted in a series of other criminal offenses, including the crime of sexual violence under Article 609-bis of the Penal Code and the crime of sexual acts committed with a minor under Article 609-quater of the Penal Code, which provide for the specific reduction, by an amount not exceeding two-thirds, in cases of "lesser gravity”; with the consequent violation of Article 3 of the Constitution, under the dual aspect of unreasonableness and disparity of treatment, as well as Article 27 of the Constitution, since a disproportionate penalty, resulting from the omission under scrutiny, risks being perceived by the convicted person as unjust and therefore diminishes its rehabilitative function.

For these reasons, the referring judge – through the declaration of unconstitutionality partially invoked – seeks to extend the possible reduction, not exceeding two-thirds, for cases of lesser gravity, already provided for in Article 609-bis, third paragraph, of the Penal Code, to the provision under scrutiny.

2.– The questions are well-founded.

3.– It is useful, first of all, to briefly account for the evolution of the provision under scrutiny within the overall legislative and jurisprudential context.

3.1.– The original regulation of crimes against sexual freedom, included in Chapter I of Title IX (Crimes against public morality and good customs) of Book Two of the Penal Code, was entirely repealed by Law no. 66 of February 15, 1996 (Provisions against sexual violence), which simultaneously introduced Articles 609-bis to 609-decies into the section of the Code dedicated to crimes against personal freedom, within the Title concerning crimes against the person.

With this reform, the legislator consolidated into the single crime of sexual violence (Article 609-bis of the Penal Code) the offenses of rape and violent sexual acts, respectively provided for in Articles 519 and 521 of the original text of the Penal Code, with the consequence that a very wide range of behaviors, with markedly diverse disvalue, but all capable of impacting the offended party’s ability to freely determine themselves in their sexual sphere, are attributable to this new crime.

Furthermore, the autonomous crime of group sexual violence was introduced by Article 609-octies of the Penal Code, which punishes the "participation, by multiple persons gathered, in acts of sexual violence referred to in Article 609-bis” of the Penal Code, with imprisonment from six to twelve years, a penalty subsequently raised, by Article 13, paragraph 5, letter a), of Law no. 69 of 2019, from eight to fourteen years.

In the past, action by multiple persons gathered was penalized based on the common rules on complicity in a crime (Articles 110 of the Penal Code et seq.), naturally in relation to the original Articles 519, 520, 521 of the Penal Code (subsequently repealed, as mentioned, by Law no. 66 of 1996), potentially also through the application of the aggravating circumstance under Article 61, number 5), of the same Code, viewing the conduct of multiple persons against one victim as a case of diminished defense. With the aforementioned Law of 1996, therefore, an instance of complicity in a crime, although qualified, was elevated to an autonomous crime, without an expansion of the criminally relevant sphere, but with the provision of a harsher statutory range compared to the crime under Article 609-bis of the Penal Code.

In this regard, the Court of Cassation has clarified that the element characterizing group sexual violence is the participation of multiple persons gathered in the commission of acts of sexual violence. In delimiting the figure of the accomplice, it has been clarified that "[i]t is not, however, required that all members of the group commit acts of sexual violence, it being sufficient that the accomplice provides a causal contribution, material or moral, to the commission of the crime, nor is it necessary for the members of the group to witness the commission of the acts of sexual violence, their presence at the time and place where said acts are committed being sufficient, even by only one of the accomplices, given that the latter’s determination is reinforced by the awareness of the group’s presence” (Court of Cassation, Third Criminal Section, judgment of July 21-October 21, 2020, no. 29096; consistent with, Third Criminal Section, October 29-December 6, 2019, no. 49723; Second Criminal Section, judgment of December 7, 2018-January 21, 2019, no. 2721).

As relevant here, Article 609-octies of the Penal Code, in its fourth paragraph, provides that the penalty shall be reduced for the participant whose work had minimal importance in the preparation or commission of the crime. The Court of Cassation has applied this mitigating circumstance rigorously, recognizing it only in cases where the contribution of the accomplice, both in the preparatory and executive phases, has been of minimal, very slight, and marginal causal efficacy and is therefore entirely negligible in the general economy of the criminal conduct, it not being sufficient, for this purpose, that the causal efficacy of the agent’s conduct is less than that of the other accomplices (among the latest, Court of Cassation, Fourth Criminal Section, judgment of January 24-March 14, 2024, no. 10649).

According to the case law of the Court of Cassation, the mitigating circumstance of "cases of lesser gravity,” provided for in the third paragraph of Article 609-bis of the Penal Code, is not applicable, both because it is not referenced by the criminalizing provision and because, when the legislator intended to extend it to hypotheses other than the basic offense of sexual violence, it expressly provided for it (for example, in the sixth paragraph of Article 609-quater of the Penal Code, which regulates the crime of sexual acts with a minor).

This is a mitigating circumstance – as recalled in Judgment no. 325 of 2005 of this Court – introduced by the legislator following the choice to introduce more comprehensive and extended protection against any conduct constituting an interference with the full self-determination in the sexual sphere, by grouping, in the unified notion of sexual act, on the one hand, carnal intercourse and, on the other, violent lewd acts. This mitigating circumstance – in the legislator’s view – thus responds precisely to the need to ensure a tempering of the effects of concentrating in a single crime behaviors, very different from each other, which, while sharing an impact on the freedom of self-determination of the offended party in their sexual sphere, determine its compromise with different degrees of intensity.

3.2.– With the aforementioned Judgment no. 325 of 2005 (followed by Order no. 170 of 2006, declaring the same issue manifestly unfounded), this Court held unfounded the constitutional legitimacy question, raised with reference to Article 3, first paragraph, and Article 27, third paragraph, of the Constitution, of Article 609-octies of the Penal Code, in the part where, unlike Article 609-bis, third paragraph, of the same Code, it does not provide for the applicability of the mitigating circumstance for "cases of lesser gravity,” deeming a direct comparison with the rules concerning sexual violence under Article 609-bis of the Penal Code (invoked as tertium comparationis by the referring judge) inappropriate, given the peculiar and intrinsic gravity of the offense caused by multiple persons gathered.

4.– This Court considers that its precedent may be reconsidered in light of the evolution of the legislative framework and its relevant jurisprudential guidance.

It is true that "the general respect for one’s precedents – along with the coherence of the interpretation with the text of the norms interpreted and the persuasiveness of the reasoning – is an essential condition for the authority of the decisions of any higher jurisdiction; and this applies also, to a special degree, to the Constitutional Judge (Judgment no. 203 of 2024, point 4.5. of the Considerations in Law)” (Judgment no. 24 of 2025).

However, the possibility for this Court to rethink its positions remains firm "when there are ‘reasons of particular cogency that render the previously adopted solutions no longer sustainable: for example, the irreconcilability of precedents with the subsequent development of the jurisprudence of this Court or of the European Courts; the changed social or normative context in which the new decision is situated, or – in any case – the emergence of circumstances, factual or normative in nature, not considered previously; the matured awareness of the undesirable consequences produced by past jurisprudence’” (Judgment no. 203 of 2024, point 4.5. of the Considerations in Law)” (thus, again, Judgment no. 24 of 2025).

5.– As anticipated, Judgment no. 325 of 2005 deemed unfounded similar questions, raised with reference to Articles 3, first paragraph, and 27, third paragraph, of the Constitution, of Article 609-octies of the Penal Code, precisely in the part where, unlike Article 609-bis, third paragraph, of the same Code, it does not provide for the applicability of the mitigating circumstance for "cases of lesser gravity.”

On that occasion, this Court noted that its judgments upholding the claim due to the exceeding of the limit of reasonableness were rendered in situations where the arbitrariness of legislative choices derived from the "direct comparison between substantially identical criminal offenses, but subjected to different penalty treatments (Judgments no. 102 of 1985, no. 341 of 1994, and no. 287 of 2001), or in cases where the same penalty was provided for both the consummated crime (homicide) and the attempt to commit the same crime.” In relation to this scope, within which the review of the exercise of the legislator’s discretionary power regarding the correspondence between the penalty and the gravity of the crime was permitted, the constitutional legitimacy questions under examination were considered extraneous, given the "substantial difference [of group violence] compared to acts of sexual violence committed by a single person, such as to render a direct comparison, relevant for the purposes of Article 3 of the Constitution, between the penalty treatment reserved for the two crimes, untenable.”

Thus, it was from this incomparability that the exclusion of contradiction with the evoked constitutional parameters was derived, as the legislator’s choice could not be considered clearly unreasonable, arbitrary, or unjustified.

With respect to that ruling, the current referring judge, while also arguing based on a comparison with the criminal hypotheses under Articles 609-bis and 609-quater of the Penal Code, emancipates the raised questions from the comparison with a specific tertium comparationis, focusing his complaints mainly on the intrinsic unreasonableness of the sanction, as he takes as a reference a system that, as a whole, "is coherent and reasonable, because it provides ex ante (or, in other words, allows the judge ex post to use) mechanisms that essentially allow the penalty to be adjusted to the concrete characteristics of the act,” especially for crimes punished with statutory penalties of considerable severity.

6.– Beyond this preliminary consideration more strictly related to the different presentation by the current referring judge compared to the issues examined by Judgment no. 325 of 2005, it must be verified whether, in light of the subsequent evolution of the normative and jurisprudential context, there are reasons that would induce this Court to reconsider the conclusions reached in the aforementioned decision.

6.1.− Several changes have occurred on the strictly normative level.

The first concerns the increase in the minimum statutory penalty for Article 609-octies of the Penal Code.

As recalled above, by Law no. 69 of 2019, it was raised from six to eight years of imprisonment.

The particular harshness of the minimum statutory penalty emerges even more clearly in light of the normative evolution of the penalty treatment for the sexual violence hypotheses under Articles 609-bis and 609-octies of the Penal Code. With the aforementioned Law of 2019, the statutory range of the latter provision changed, moving from a range of six-twelve years of imprisonment to a range of eight-fourteen years, with an increase, therefore, in the minimum and maximum statutory penalty that was percentually different. This is a particularly significant circumstance considering that the increase provided for, by the same Law no. 69 of 2019, for the crime under Article 609-bis of the Penal Code, went, instead, pari passu for the minimum and maximum statutory penalty.

Still in the comparison between the two crimes of sexual violence under Articles 609-bis and 609-octies of the Penal Code, it is particularly telling that, in the hypothesis where the minimum statutory penalty is applied, the penalty treatment is equal to six and eight years of imprisonment, respectively, with a difference, therefore, between the two crimes, of two years. Conversely, for cases of lesser gravity, for which the judge can apply the reduction of up to two-thirds only in the hypothesis under Article 609-bis of the Penal Code, the difference can rise to as much as six years.

The second, even more decisive, factor of change subsequent to Judgment no. 325 of 2005 – dating back twenty years – is the progressively greater attention shown by the jurisprudence of this Court regarding the margins for review of penalty sizing and the reasonableness and proportionality of the sanction.

Constitutional jurisprudence, gradually freeing the review of conformity with the principle of proportionality of the statutory penalty from the constraints imposed by the need to identify a precise tertium comparationis, has progressively favored "a model of review of the ‘intrinsic’ proportionality of the penalty, which – while maintaining the broad discretion enjoyed by the legislator in determining the statutory ranges […] – directly assesses whether the imposed penalty must be considered manifestly excessive with respect to the sanctioned act, subsequently seeking reference points already existing in the system to preliminarily reconstruct a new penalty framework in place of the one affected by the declaration of unconstitutionality, pending a possible legislative intervention aimed at re-determining the measure of the penalty, in compliance with constitutional principles” (Judgment no. 284 of 2019). This principle was reiterated, more recently, by Judgments no. 91 of 2024 and no. 136 of 2020.

The growing consideration for the necessary and intrinsic reasonableness and proportionality of the penalty has led to the need to provide for so-called safety valves capable of ensuring the possibility of adjusting the sanction to the concrete characteristics of the act. This is especially true in the presence of two conditions: a significantly high minimum statutory penalty and a normative scope such as to include within the same criminal offense conduct with markedly dissimilar disvalue (as in Judgments no. 91 of 2024, no. 120 of 2023, no. 244 of 2022, and no. 68 of 2012, relating, respectively, to the crimes of producing pornographic material using minors under eighteen, extortion, military sabotage, and kidnapping for the purpose of extortion).

Furthermore, beyond this change, the overall legislative landscape offers a series of hypotheses in which the legislator provides for a mitigating circumstance for cases of lesser gravity. Suffice it to mention the hypotheses of kidnapping for coercion under Article 289-ter, third paragraph, Penal Code, but also crimes against the security of the State (Article 311 Penal Code) and a large portion of crimes against the public administration (those indicated by Article 323-bis Penal Code); but above all, due to the particular similarity with the offense in question, the crimes of sexual violence under Article 609-bis of the Penal Code and the crime of sexual acts committed with a minor.

7.– Having established the above – and without prejudice to the fact that discretionary evaluations regarding penalty sizing fall to the legislator, with the only limit of penalty choices that prove to be arbitrary or manifestly unreasonable (ex multis, among the latest, Judgments no. 91 and no. 46 of 2024, no. 120 of 2023, no. 260 and no. 95 of 2022, no. 62 of 2021) –, it has already been stated, in general terms, that, in the constitutional legitimacy review of the intrinsic reasonableness and proportionality of the penalty, constitutional jurisprudence values two factors: the normative scope of the provision under scrutiny and the excessive harshness of the minimum statutory penalty.

As to the first aspect, the need to provide for mitigating circumstances to be able to individualize the sanction according to the specific disvalue of the single conduct and ensure compliance with the principles set by Articles 3 and 27 of the Constitution is particularly imperative when the wording of the provision under scrutiny is broad enough to include offenses significantly diversified in criminological terms and level of disvalue (ex multis, Judgments no. 83 of 2025; no. 91 of 2024; no. 120 of 2023, no. 244 of 2022, no. 117 of 2021, no. 88 of 2019, no. 106 of 2014 and no. 68 of 2012).

As to the second aspect, the particularly high minimum statutory penalty is relevant, such as to preclude the judge from graduating the sanction to adapt it to the concrete case and the specific disvalue of the incriminated conduct (ex multis, Judgments no. 91 and no. 46 of 2024, no. 120 of 2023, no. 244 and no. 63 of 2022, no. 143 of 2021 and no. 68 of 2012).

8.– In light of these jurisprudential coordinates, the constitutional legitimacy issues – as stated – prove to be well-founded.

For the crime under Article 609-octies of the Penal Code, in fact, both aspects are present: extended normative scope and a particularly high minimum statutory penalty.

8.1.− As recalled above, the provision under scrutiny ("participation, by multiple persons gathered, in acts of sexual violence referred to in Article 609-bis”), given the broadness of the notion of an act of sexual violence (including rape and violent lewd acts, originally provided for in the repealed Articles 519 and 521 of the Penal Code), is characterized by a considerable descriptive latitude capable of involving a wide range of conduct with diversified disvalue, i.e., capable of compromising the protected legal interest in a profoundly different manner, as, moreover, demonstrated by the offense in question in the originating proceedings.

8.2.− It is true that, as stated in the cited Judgment no. 325 of 2005, the crime in question, precisely because of the presence of multiple persons gathered, causes a particularly serious and traumatic injury to the sphere of self-determination of sexual freedom of the victim, thereby "differing also on the qualitative level” from acts of sexual violence committed by a single person.

However, this peculiar disvalue is already the basis for the provision of an autonomous crime (rather than being an aggravation of the basic crime of sexual violence) and, above all, for the significantly more severe penalty treatment compared to the hypothesis under Article 609-bis of the Penal Code.

8.3.− Moreover, even for the necessarily multi-subject hypothesis, as observed above, the same necessity arises that inspired the introduction of the mitigating circumstance for cases of lesser gravity provided for in the hypothesis under Article 609-bis of the Penal Code, namely to ensure a tempering of the effects of concentrating in a single crime conduct capable of infringing upon the sexual freedom of the offended party in a markedly diversified manner.

Nor can the mitigating circumstance provided for in the fourth paragraph of Article 609-octies of the Penal Code for the participant whose work had minimal importance in the preparation or commission of the crime be relevant in this context. This is because it concerns the contribution made by the individual participant and in no way allows the sanction to be calibrated to the gravity of the concrete offense committed by all the accomplices, considering the methods of execution of the crime and the compromise of the protected legal interest.

8.4.− Therefore, the failure to provide for a safety valve that allows the judge to modulate the penalty, in order to adapt it to the concrete gravity of the individual conduct, can lead to the imposition of a sanction that is not proportionate, as the normative wording of the challenged Article 609-octies of the Penal Code, in its breadth, is capable of including within its scope of application conduct markedly dissimilar, in criminological terms and level of disvalue, some of which are difficult to reconcile with the logic underlying the severe penalty range concerning group sexual violence.

These considerations gain even greater weight in consideration of the provision of a statutory range characterized by a minimum of significant harshness, equal to eight years of imprisonment.

9.− What has been stated so far ultimately leads to the conclusion that the violation of the principle of proportionality of the penalty as well as the principle of intrinsic reasonableness, derivable from Articles 3 and 27 of the Constitution, is established.

10.− The reduction can be identified, based, moreover, on what was indicated by the referring judge, in that applicable to the figure of sexual violence under Article 609-bis of the Penal Code.

This penal solution, already existing in the legal system and indeed somewhat symmetrical to the offense in question, constitutes a solution capable of remedying the detected breach. This obviously does not preclude – according to the principles – a general reconsideration by the legislator of the issue under examination, concerning the systematic aspect of the criminal offenses, the criminalizing norms, and the penalty treatments; a systematic reconsideration that must naturally take into account the constitutional canons of proportionality and individualization of the penalty.

Finally, it must be emphasized that the concrete application of this reduction can find reasonable justification limited to hypotheses of disvalue significantly lower than that normally associated with the realization of an act conforming to the abstract figure of the crime, since this conduct still impacts the freedom of self-determination in the sexual sphere of the offended party, who undergoes an aggression, both qualitatively and quantitatively, more intense than in the case of sexual violence under Article 609-bis of the Penal Code.

for these reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 609-octies of the Penal Code, in the part where it does not provide that in cases of lesser gravity the penalty imposed by it is reduced by an amount not exceeding two-thirds.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 20, 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Igor DI BERNARDINI, Chancellor

Filed in the Registry on December 29, 2025

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