JUDGMENT NO. 203

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 pronounced the following

JUDGMENT

in the constitutional legitimacy proceedings concerning art. 28, paragraph 5-bis, of the Presidential Decree of September 22, 1988, no. 448 (Approval of provisions on criminal proceedings against juvenile defendants), added by art. 6, paragraph 1, letter c-bis), of the Decree-Law of September 15, 2023, no. 123 (Urgent measures to combat youth disadvantage, educational poverty, and juvenile crime, as well as for the safety of minors in the digital sphere), introduced, upon conversion, by Law of November 13, 2023, n. 159, initiated by the Judge of the Preliminary Hearing of the Juvenile Court of Rome, with order of February 18, 2025, by the Judge of the Preliminary Hearing of the Juvenile Court of Bari, with order of March 24, 2025, and by the Judge of the Preliminary Hearing of the Juvenile Court of Rome, with order of April 17, 2025, registered respectively under numbers 45 and 68 of the register of orders of 2025, the hearing of which was set for the chamber meeting of September 22, 2025, and under no. 88 of the register of orders of 2025 and published in the Official Gazette of the Republic, first special series, numbers 12, 17 and 21 of the year 2025.

Having reviewed the deed of constitution of C. L. in their capacity as exercising parental responsibility over the minor K.D.R. O., as well as the intervention deeds of the President of the Council of Ministers;

having heard Judge Rapporteur Stefano Petitti in the public hearing and chamber meeting of September 23, 2025;

having heard the lawyer Maurilio Prioreschi for C. L., in their capacity as exercising parental responsibility over the minor K.D.R. O., and the State lawyers Salvatore Faraci and Erica Farinelli for the President of the Council of Ministers;

deliberated in the chamber meeting of September 23, 2025.

Facts Considered

1.– With order of February 18, 2025, registered under no. 45 of the register of orders of 2025, the Judge of the Preliminary Hearing of the Juvenile Court of Rome raised questions of constitutional legitimacy concerning art. 28, paragraph 5-bis, of Presidential Decree no. 448 of September 22, 1988 (Approval of provisions on criminal proceedings against juvenile defendants), added by art. 6, paragraph 1, letter c-bis), of Decree-Law no. 123 of September 15, 2023 (Urgent measures to combat youth disadvantage, educational poverty, and juvenile crime, as well as for the safety of minors in the digital sphere), introduced, upon conversion, by Law no. 159 of November 13, 2023, in reference to articles 31, second paragraph, 117, first paragraph, and 3 of the Constitution, in the part where it provides that the provisions of paragraph 1 of the same art. 28, concerning the suspension of proceedings with probation, do not apply to the felony provided for by art. 609-octies of the Penal Code (gang sexual violence), limited to the aggravated hypotheses pursuant to art. 609-ter of the same Code.

1.1.– The referring judge is proceeding by summary trial against K. C. and A. U., defendants:

a) of the felony under articles 609-octies, first, second, and third paragraphs, 609-ter, first paragraph, numbers 2) and 5), and 61, numbers 4) and 5), of the Penal Code, for having forced G. P., aged sixteen, – after taking him to a garage beneath a supermarket, through the intimidating force of the group and the threat consisting of the statement by S. H., "you have to do this or we'll get physical" – to undergo sexual acts, consisting, on the part of S. H., in penetrating him anally with a stick and then forcing him to put the same end of the stick in his mouth, while simultaneously slapping him on the nape of the neck, as all of them repeatedly spat on him and recorded the events with their mobile phones.

With the aggravating circumstance of having used torture and cruelty against a minor under eighteen years of age, through the use of instruments severely harmful to the victim's health, taking advantage of circumstances of place and person that hindered private defense;

b) of the felony under articles 110 and 600-ter, first paragraph, number 1), of the Penal Code, because, in concert with each other, they created, using their mobile phones and subsequently disseminating them on WhatsApp groups, videos depicting G. P. performing the aforementioned sexual acts;

c) of the felony under articles 110 and 612-bis, first paragraph, of the Penal Code, because, in concert with each other, through repeated conduct consisting of performing the conduct described in the preceding count, as well as, on another occasion occurring on a different date, of deriding and repeatedly beating him, slamming him against a jeweler's shutter multiple times, putting him inside a garbage container, extinguishing a cigarette on his neck, and throwing a liquid, presumably urine, at him, they molested G. P., causing him a persistent and severe state of anxiety and fear and generating in him a well-founded apprehension for his personal safety.

The Judge of the Preliminary Hearing of the Juvenile Court of Rome reports that, after the immediate trial was ordered by the Judge for Preliminary Investigations, the defendants were examined at the hearing, where they admitted the facts, expressed remorse for what they had done, narrated that they had apologized to the victim and attempted to explain the reasons for their actions, while not wishing to minimize their responsibilities, and finally requested the suspension of proceedings with probation. The staff of the Social Service Office for Minors (USSM) present at the hearing also leaned towards this latter view, and the Public Prosecutor expressed a favorable opinion.

1.2.– The referring judge observes, however, that the act in count (a) of the indictment was committed after the entry into force of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, so that the possibility for the applicants to be admitted to probation remains legally precluded. The defense counsel and the Public Prosecutor thus requested the raising of the question of constitutional legitimacy of this provision.

The Judge of the Preliminary Hearing of the Juvenile Court of Rome then illustrates the reasons for the relevance of the raised questions. In the absence of the aforementioned paragraph 5-bis, the Panel would have been able to rule favorably on the request for probation, as, based on the elements in the file and the confessions made, an acquittal on the merits of the defendants could not be reached, but the latter had already shown remorse in the days following the events, apologizing to the victim. The collaborative intent and participation in the proposed educational interventions were confirmed by the reports prepared by the USSM.

For the referring judge, both defendants, one aged fifteen and the other sixteen at the time of the events, revealed a sincere critical re-evaluation of the contested crimes, expressed even before becoming aware of the pending investigations and the application of the precautionary measure, which was, in fact, revoked due to the absence of danger of recurrence of similar conduct.

The referring judge further specifies that the characteristics of the concrete case exclude the qualification of minor gravity, for the purposes of art. 609-bis, third paragraph, of the Penal Code, and that the severity of the penalty provided by law for the contested crimes does not allow for consideration of the institutes of substitute penalties under art. 30 of Presidential Decree no. 448 of 1988 or judicial pardon under art. 169 of the Penal Code.

1.3.– As for the non-manifest groundlessness of the questions, the referring judge, denying the feasibility of a constitutional interpretation of paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988, finds first of all its conflict with art. 31, second paragraph, of the Constitution, in that the absolute preclusion of access to probation contradicts the typical purpose of juvenile criminal proceedings, which is the recovery of the minor through his re-education and social reintegration; probation, the referring judge argues, is one of the main tools that allows the judge to fully assess the minor's personality, from a psychological, social, and environmental perspective, also for the purpose of evaluating the results of the support interventions ordered.

Recalling the jurisprudence of this Court on the need for juvenile justice to make assessments based on individualized prognoses, capable of fulfilling the task of recovering the minor, the Judge of the Preliminary Hearing of the Juvenile Court of Rome maintains that providing for a catalogue of crimes in relation to which the defendant's access to this institute is precluded, without the judge being able to assess the request on its merits, would constitute an infringement not only of the needs for protection and safeguarding of the minor who committed the crime, but also of those of the entire community against the risks of possible recidivism.

The referring judge also states that probation projects also take into account the injured parties, especially if they are minors and victims of specific crimes, by providing for specific requirements aimed at repairing the consequences of the crime and promoting conciliation, as well as participation in restorative justice programs.

1.4.– The referring judge also refers to the following supranational and international sources, which relegate the deprivation of personal liberty of the convicted minor to an extreme remedy (*extrema ratio*): the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (so-called "Beijing Rules"), adopted by the United Nations General Assembly by resolution 40/33 of November 29, 1985; the UN Rules for the Protection of Juveniles Deprived of their Liberty (so-called "Havana Rules"), adopted by the United Nations General Assembly by resolution 45/113 of December 14, 1990; the recommendation of the Committee of Ministers of the Council of Europe of November 5, 2008, on European rules for juvenile offenders subject to sanctions or measures; the Guidelines of the Committee of Ministers of the Council of Europe for a child-friendly justice system, adopted on November 17, 2010; Directive (EU) 2016/800 of the European Parliament and of the Council of May 11, 2016, on procedural safeguards for children who are suspects or accused persons in criminal proceedings.

From these acts, and the related obligations, the grounds for conflict also with art. 117, first paragraph, of the Constitution emerge.

1.5.– Finally, the Judge of the Preliminary Hearing of the Juvenile Court of Rome deems that the criterion for selecting the crimes made "obstructive" to probation by paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988 presents aspects of unreasonableness, given that even more serious crimes, such as those under art. 416-bis or aggravated pursuant to arts. 416-bis.1, 422 and 630 of the Penal Code, still allow access to juvenile probation.

Nor is the consideration of statistical data that would show an increase in proceedings for the felonies contemplated by paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988 decisive, data which, even if such a phenomenon were found in practice, would, in the referring judge's opinion, require all the more an in-depth and individualized analysis of the personality of the minor defendant to reach, on the merits, the admission or exclusion of probation, which the juvenile courts do not grant automatically in any case.

1.6.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, who requested that the questions be declared manifestly inadmissible or manifestly unfounded.

1.6.1.– The State Attorney General's Office first objects to the inadmissibility of the questions "due to the failure to identify the constitutional parameters to be necessarily taken as reference" for them, as the referring judge limited himself to raising the question of the violation of art. 31, second paragraph, of the Constitution without also making due reference to arts. 27, third paragraph, and 24 of the Constitution.

The order of reference also lacks adequate reasoning on the existence of all the indicators on which the prognostic judgment required for admission to probation must be conducted, according to the jurisprudence of the Court of Cassation, relating both to the committed crime and to the personality of the offender, with regard also to the period subsequent to the incriminating fact, with repercussions on the relevance of the raised questions.

Furthermore, the reference to international acts to support the challenge proposed in relation to art. 117, first paragraph, of the Constitution, would be generic.

The reconstruction of the normative framework supporting the alleged unreasonableness of the catalogue of crimes made "obstructive" to probation by paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988 would also be incorrect.

1.6.2.– On the merits, according to the President of the Council of Ministers, the questions would in any case be manifestly unfounded.

The State defense objects that the radical nature of the thesis upheld by the Judge of the Preliminary Hearing of the Juvenile Court of Rome, according to which juvenile proceedings should always and in any case be based, in addition to the recovery objectives of the minor, on the attenuation of the offensiveness of the proceedings and the rapid exit of the minor from the criminal circuit, would be based on an outdated conception of the minor figure, which, from a criminological point of view, is no longer supported by reality, as evidenced by the aforementioned statistical data. The indisputable guidelines of juvenile criminal proceedings should, instead, be reconciled, with respect for other primary constitutional values (life, integrity, and health of citizens), with the needs of both specific and general prevention, in the face of very serious crimes, such as those contemplated by the contested provision.

Having established the foregoing, the Attorney General's Office maintains that the questions would be manifestly unfounded on two distinct grounds.

The first concerns the consideration that the referring judge challenges, in reference to art. 31, second paragraph, of the Constitution, the preclusion of the absolute prohibition of access to probation, in cases of aggravated sexual violence, without even limiting it to the less serious hypotheses, which would lead to theorizing a "tyrannical right" to probation with respect to the other constitutional values at stake. In any case, this would be a form of non-reviewable exercise of legislative discretion on the "qualification" of the absolute gravity of the crime for the purposes of the inapplicability of the provisions concerning the suspension of proceedings with probation.

The second concerns the alleged violation of art. 117, first paragraph, of the Constitution, due to non-compliance with international obligations concerning juvenile criminal justice. From the examination of the acts referred to by the referring judge, the State defense maintains that no binding international regulation emerges that provides for a general obligation to allow access to probation for minors, emphasizing, moreover, that the recourse to alternatives to deprivation of liberty should only be encouraged when possible, also taking into account the particular circumstances of the case.

Finally, regarding the alleged violation of art. 3 of the Constitution, the Attorney General's Office highlights the lack of homogeneity of the observations contained in the order of reference, concerning the operation of the *tertium comparationis* criterion in the face of the obstructive cases listed by paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988. The referring judge would have, in fact, referred to certain criminal offenses (mass murder, kidnapping for ransom, mafia association, and aggravated hypotheses of crimes connected to mafia activities) which have nothing to do, either in terms of sanction or criminologically, with the incriminating offenses that are the subject of the contested preclusion, and particularly with that charged to the defendants.

1.7.– In the proceedings concerning the order registered under no. 45 of the register of orders of 2025, the Italian Association of Criminal Law Professors (AIPDP) and the Union of Italian Criminal Chambers (UCPI) respectively filed written opinions, as *amici curiae*, on April 7 and 8, 2025. The opinions were admitted by Presidential decree of July 10, 2025.

1.7.1.– The AIPDP, stating that it trusts in the declaration of unconstitutionality of paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988, observes that the preclusions to the operation of probation introduced, upon conversion, by Law no. 159 of 2023 move the institute away from the aims of juvenile justice, bringing it closer to that provided for adults, in violation of articles 31, second paragraph, 3 and 27, third paragraph, of the Constitution, as well as the fundamental guarantees provided by international documents on juvenile justice referred to by the referring judge, and therefore also art. 117, first paragraph, of the Constitution.

It then emphasizes that the framework of Presidential Decree no. 448 of 1988 is based on the individualization of the criminal response to the minor who has committed a crime and on the educational tension of the entire juvenile procedure, in which assessments of personality (art. 9) assume central relevance; these purposes are reflected in the choice of the 1988 legislator to exclude any objective preclusion to the operation of both non-prosecution for irrelevance of the fact (art. 27) and probation, with reference to which any decision on adequacy should be left to the specialized judge, in relation to the concrete case and the educational needs manifested by the minor, and for any type of crime.

The AIPDP also recalls the argument, widespread in the jurisprudence of this Court, which highlights the functional difference between juvenile probation and the analogous institute provided for adults, in the sense that the essentially deflationary function of adult probation is contrasted with the "purely (re)educational" purpose of juvenile probation.

The legislator's choice to introduce a catalogue of crimes making access to probation obstructive for the application of probation would therefore be in stark contrast to the needs for individualization of criminal intervention for the minor who committed the crime, since in relation to the considered crimes, a presumption of dangerousness of the minor would operate, such as to preclude his removal from the procedural circuit.

The opinion points out that the probationary period constitutes a privileged point of observation on the evolution of the minor's personality, who, far from receiving a paternalistic measure of clemency, is engaged in observing a personalized educational program under the guidance of juvenile services, with a view to acquiring awareness of the fundamental values of civil coexistence and his own responsibility. For these reasons, probation proves to be more fruitful precisely with regard to minors who commit serious crimes, given the special educational needs manifested by the criminal behavior of a subject in the developmental age. And certainly, in light of the requirements of the project on which the probation is based, the institute is anything but lenient.

The configuration of aggravated gang sexual violence as a crime obstructive to probation would then reveal an intolerable unreasonableness of the system, given that the contested provision would suggest that detention is the only valid measure for this crime, with reference to which, however, the legal system allows, within certain limits of the penalty imposed, the application to the minor of conditional suspension and substitute penalties, as well as the suspension of the execution order and recourse to community-based penal measures.

After noting that data on the presence of detainees in juvenile detention facilities show a fifty percent increase following the entry into force of Decree-Law no. 123 of 2023, as converted, the AIPDP concludes by denouncing the unreasonableness of the catalogue of crimes obstructive to juvenile probation, since offenses of greater or equal seriousness based on the statutory penalty levels are excluded, and instead an indiscriminate reference is made to articles 609-bis and 609-octies of the Penal Code in the hypotheses aggravated pursuant to art. 609-ter of the same Code, which in turn is characterized by reference to a notion of "sexual acts" that is suitable to encompass a wide range of conduct.

1.7.2.– The UCPI also declared that it shared the challenges of the referring judge, asserting that part of the provisions introduced by Decree-Law no. 123 of 2023, as converted, runs counter to the guiding ideas of the so-called juvenile procedure code, contained in Presidential Decree no. 448 of 1988, which contributed to Italy being, until 2023, one of the European countries with the lowest rates of juvenile crime and incarceration, thus achieving the goal of relegating imprisonment to an actual *extrema ratio*.

The *amicus curiae* refers in this regard to the statements in judgments No. 139 of 2020 and No. 68 of 2019 of this Court, regarding the profound functional difference between adult probation, characterized by undeniable punitive traits, and juvenile probation, having an essentially re-educational purpose. This functional heterogeneity is particularly evident in the fact that juvenile probation, unlike that of adults, is largely unlinked from a relationship of proportionality to the crime for which proceedings are initiated, so much so that it is allowed for all crimes, including those abstractly punishable by life imprisonment. Juvenile probation is also configured as an institute of official and unlimited application, not conditioned, that is, by the request of the defendant, nor by the consent of the Public Prosecutor, since the essential re-educational purpose shapes its discipline in a "strictly personological" sense, regardless of any objective of judicial deflation.

The introduction of absolute preclusions to access to probation based on the types of crimes for which proceedings are initiated betrays the spirit of the institute, moving in an essentially retributive and punitive direction for the minor.

The tendency towards incompatibility with the principles of the Constitutional Charter (culpability, re-educational purpose, equality-reasonableness, in particular) of presumptive assessments that orient the punitive response detrimentally in the presence of particular conditions, in juvenile criminal law, assumes, in the opinion of the UCPI, an even greater, and indeed independently decisive, relevance.

The UCPI opinion finally refers to and illustrates the international sources that would support the challenge of violation of art. 117, first paragraph, of the Constitution.

2.– With order of March 24, 2025, registered under no. 68 of the register of orders of 2025, the Judge of the Preliminary Hearing of the Juvenile Court of Bari raised, in reference to articles 31, second paragraph, 3, 27, third paragraph, and 117, first paragraph, of the Constitution, questions of constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in the part where it provides that the provisions of paragraph 1 do not apply to the felony under art. 609-bis of the Penal Code (sexual violence), limited to the hypotheses aggravated pursuant to art. 609-ter of the same Code.

2.1.– The referring judge states that he is seized of the proceedings against A. K. D. B., aged fourteen at the time of the facts, accused of the felonies under articles 81, 605, 609-bis and 609-ter, last paragraph, first hypothesis, of the Penal Code, because, with various executive actions of a single criminal design, he forced the thirteen-year-old victim to undergo sexual acts, also depriving her of her personal liberty; more specifically, after inviting her alone to a room available to him, he hugged the victim, repeatedly touched her breasts and private parts, and kissed her on the lips, despite her dissent, also acting with violence, consisting of picking her up and forcing her to sit on a stool, grabbing her by the neck, and positioning himself in front of the entrance door to prevent her from leaving, and in any case acting suddenly and taking advantage of his physical superiority and the absence of other persons, also pulling down his trousers and underwear and equipping himself with condoms with the clear intention of having sexual intercourse with her.

At the preliminary hearing on March 10, 2025, the defendant made spontaneous statements, submitted to examination, and requested the suspension of proceedings with the commencement of the probationary treatment program.

2.2.– Regarding the relevance of the questions, the referring judge states that he cannot grant the request, as this is precluded by art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, which prevents the application of the provisions of paragraph 1 in the presence of the felony under art. 609-bis of the Penal Code, aggravated pursuant to art. 609-ter of the same Code.

The order of reference specifies that all the prerequisites for commencing probation appear to be present: the defendant, aged fourteen at the time of the facts, admitted the conduct charged in terms of the objective element, seemed remorseful for it, reported, according to statements made by two witnesses, that he acted under the influence of narcotic substances (a circumstance, however, denied during the examination), thus making statements apparently resulting from a process of gaining awareness regarding the incident.

The results of the acquired report from the Justice Administration's Juvenile Services also support a positive evolution of the defendant's personality, adequately supported by the family.

2.3.– The referring judge also justifies the non-manifest groundlessness of the questions in reference to articles 31, second paragraph, 3 and 117, first paragraph, of the Constitution, with arguments analogous to those set forth in the order registered under no. 45 of the register of orders of 2025.

It is assumed that the provision of a catalogue of crimes (including aggravated sexual violence pursuant to art. 609-ter, last paragraph, of the Penal Code) in relation to which the minor defendant is deprived of the possibility of access to probation would constitute an infringement of the needs for protection and safeguarding of the minor who committed the crime, establishing a rigid automatic impediment.

The unreasonableness of the condition of the defendant in the main proceedings is also highlighted, as he is charged with both the felony of aggravated sexual violence and the felony of kidnapping a minor, which in itself is not obstructive to probation.

Furthermore, the referring judge deduces the violation of art. 3 of the Constitution, as defendants also charged with more serious felonies, considering the statutory penalty provided, such as felonies of production, sale, and distribution of child pornography, mass murder, terrorism, mafia association felonies, or kidnapping for ransom, would have access to the probation institute, with evident unreasonableness in the legislative choices.

Regarding the conflict with art. 27, third paragraph, of the Constitution in particular, the Judge of the Preliminary Hearing of the Juvenile Court of Bari observes that the conviction of the defendant to a custodial sentence or substitute sanctions would prove to be devoid of the educational and responsibility-fostering capacity of the probationary treatment program.

2.4.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, who requested that the questions be declared manifestly inadmissible or manifestly unfounded, with arguments analogous to those set forth in the proceedings concerning the order registered under no. 45 of the register of orders of 2025.

2.5.– On May 12, 2025, the AIPDP and the UCPI filed written opinions, as *amici curiae*, setting forth considerations analogous to those set forth in the proceedings concerning the order registered under no. 45 of the register of orders of 2025. The opinions were admitted by Presidential decree of July 10, 2025.

3.– With order of April 17, 2025, registered under no. 88 of the register of orders of 2025, the Judge of the Preliminary Hearing of the Juvenile Court of Rome raised, in reference to articles 31, second paragraph, 3 and 117, first paragraph, of the Constitution, questions of constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in the part where it provides that the provisions of paragraph 1 do not apply to the felony under art. 609-bis of the Penal Code (sexual violence), limited to the hypotheses aggravated pursuant to art. 609-ter of the same Code.

3.1.– The referring judge reports that he is proceeding against K.D.R. O., accused of the crime provided for by articles 609-bis, last paragraph, and 609-ter, first paragraph, number 5), of the Penal Code, for having forced a minor, aged fifteen at the time of the facts, to undergo sexual acts by kissing her against her will and repeatedly touching her breasts and private parts, despite her repeated refusal, as she was unable to validly oppose due to the consumption of alcoholic beverages.

He also reports that the defense counsel – in light of the report from the USSM and a psychological report from the Department of Mental Health and Rehabilitation in Developmental Age (UOC TSMREE) of the Local Health Authority RM 5 of Guidonia – had requested the admission of the defendant to probation.

3.2.– Regarding the relevance of the questions, the referring judge states that the contested crime does not have the characteristics of irrelevance of the fact under art. 27 of Presidential Decree no. 448 of 1988, as such an assessment cannot be based on the charge of the last paragraph of art. 609-bis of the Penal Code, which introduces a special effect mitigating circumstance, which in itself is not suitable to render the act for which proceedings are initiated mild in this case, in light of both the contested aggravating circumstance and the legal interest protected (sexual liberty of a minor subject), and the information provided by the injured party regarding the dynamics of the fact. Furthermore, judicial pardon – although abstractly grantable, considering the statutory penalty limits provided for the contested crime – would represent a worse outcome than probation, given that the sentence under art. 169 of the Penal Code would be noted on the criminal record until the defendant reaches the age of twenty-one, undoubtedly to his detriment considering the stigmatizing nature of the contested crime, and would preclude the attempt to recover the minor also in terms of greater responsibility regarding the correct management of sexuality.

The referring judge notes, however, that he cannot order the suspension of proceedings with probation requested by the defense counsel, given the preclusion provided for in relation to the crime charged by art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988.

The order of reference emphasizes that, despite the impediment imposed by the contested provision, the further conditions for the admission of the defendant to probation under art. 28 of Presidential Decree no. 448 of 1988 exist based on the case file. In fact, a judgment of acquittal on the merits could not be reached, there were no elements to deem the defendant incapable of understanding and willing, the commission of the crime was not the product of a rooted deviant choice by a minor with a structured delinquent personality, the defendant regularly attends school and a catechesis group at the local parish, is a stable member of a football team, and the entire environmental context of belonging offers ample scope for recovery; the minor, finally, is available to adhere to an educational project. The defendant also admitted the charge since the preliminary investigation stage, specifying that he committed the act while he and the victim were drunk and his friends were inciting him to the contested conduct.

The defendant also declared that he apologized to both the victim, in the two days following the events, and to the victim's sister, which would confirm the maturation of a genuine critical re-evaluation of the charged crime.

As for the non-manifest groundlessness, the order contains arguments analogous to those already set forth in the two previous orders of reference. In particular, the referring judge believes that the criterion for selecting the crimes made "obstructive" to probation by paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988 presents aspects of unreasonableness, given that even more serious crimes, such as those under art. 416-bis or aggravated pursuant to arts. 416-bis.1, 422, 629, second paragraph, and 630 of the Penal Code, still allow access to juvenile probation.

3.3.– C. L. filed a statement of constitution in the proceedings on June 5, 2025, on behalf of the minor K.D.R. O.

Stating that all the prerequisites for the suspension of proceedings with probation exist, as the minor's personality is oriented towards a certain change, the constituted party concluded in favor of the declaration of unconstitutionality of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in the part where it provides that the provisions of paragraph 1 do not apply to the felony under art. 609-bis of the Penal Code, limited to the hypotheses aggravated pursuant to art. 609-ter of the same Code, for violation of articles 3 and 31, second paragraph, of the Constitution, also in conjunction with articles 24, 25 and 27, third paragraph, of the Constitution, articles 77, 11 and 117, first paragraph, of the Constitution, in relation to articles 6 and 8 of the European Convention on Human Rights, Directive 2016/800/EU, as well as the so-called "Beijing Rules" and the Guidelines for a child-friendly justice system of November 17, 2010.

3.4.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, who requested that the questions be declared manifestly inadmissible or manifestly unfounded, in addition to the arguments already set forth in the proceedings concerning the order registered under no. 45 of the register of orders of 2025, and which have been accounted for, due to deficient reasoning on relevance, with specific reference to the possibility, admitted by the referring judge himself, of granting judicial pardon in the present case.

Considerations in Law

1.– With three distinct orders of similar content and indicated in the heading, the Judges of the Preliminary Hearing of the Juvenile Courts of Rome (reg. ord. no. 45 and no. 88 of 2025) and Bari (reg. ord. no. 68 of 2025) raised questions of constitutional legitimacy concerning art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in reference to articles 31, second paragraph, 3, 27, third paragraph (only the order registered under no. 68 of reg. ord. 2025), and 117, first paragraph, of the Constitution, the latter in relation to interposed supranational and international norms.

The contested norm establishes that the provisions concerning the suspension of proceedings and probation of the minor contained in paragraph 1 of the same art. 28 "do not apply to the felonies provided for by article 575 of the Penal Code, limited to the hypotheses aggravated pursuant to article 576, by articles 609-bis and 609-octies of the Penal Code, limited to the hypotheses aggravated pursuant to article 609-ter, and by article 628, third paragraph, numbers 2), 3) and 3-quinquies), of the Penal Code."

The referring judges must rule on the liability of minor defendants, respectively called to answer for the felony under articles 609-octies, first, second, and third paragraphs, and 609-ter, first paragraph, numbers 2) and 5), of the Penal Code (order registered under no. 45 reg. ord. of 2025), the felony under articles 609-bis and 609-ter, last paragraph, first hypothesis, of the Penal Code (order registered under no. 68 reg. ord. of 2025), and the felony under articles 609-bis, last paragraph, and 609-ter, first paragraph, number 5), of the same Code (order registered under no. 88 reg. ord. of 2025).

In all the proceedings, the referring judges note that, although all the conditions for admission of the defendants to probation exist, the acceptance of the requests made by them is precluded by the contested provision due to the types of crimes for which proceedings are initiated.

2.– According to the referring judges, art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, conflicts, first of all, with art. 31, second paragraph, of the Constitution, in the part where it establishes that the provisions concerning the suspension of proceedings with probation do not apply to the felony provided for by art. 609-octies of the Penal Code (gang sexual violence), limited to the hypotheses aggravated pursuant to art. 609-ter, first paragraph, numbers 2) and 5), of the Penal Code (order registered under no. 45 reg. ord. of 2025), or to the felony provided for by art. 609-bis, first and third paragraphs, of the Penal Code (sexual violence), limited to the hypotheses aggravated pursuant to art. 609-ter, first paragraph, number 5), and last, of the same Code (orders registered under nos. 68 and 88 reg. ord. of 2025).

This is because the contested provision, by providing for an absolute prohibition of probation linked to the type of crime, prevents a specialized judge from identifying, based on the circumstances of the individual case, the response most suited to the minor's personality, thus conflicting with the entire framework of juvenile proceedings, which, in compliance with the aforementioned constitutional precept, has as its primary purpose the recovery of the minor through his re-education and social reintegration, with rapid exit from the criminal circuit. This purpose finds in the institute under consideration one of its most qualifying means of realization.

The orders of reference also question the constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988 with reference to art. 3 of the Constitution, as they provide for a rigid catalogue of crimes obstructive to juvenile probation, of lesser or equal seriousness to other criminal offenses for which admission to probation is still allowed.

Another constitutional parameter violated by the provision in question would be art. 117, first paragraph, of the Constitution, as the absolute prohibition of probation linked to the type of crime would contravene compliance with the obligations arising from supranational and international obligations that relegate the deprivation of personal liberty of the convicted minor to an extreme remedy.

Finally, the order registered under no. 68 of the register of orders of 2025 finds a violation of art. 27, third paragraph, of the Constitution, because the contested norm, by establishing an absolute prohibition of probation linked to the type of crime, would expose the minor defendant to a conviction to a custodial sentence or substitute sanctions, in any case devoid of the educational and responsibility-fostering capacity of the probation program.

3.– The three orders of reference concern the same provision and raise largely overlapping questions, so that their joinder for a joint decision appears appropriate.

4.– In the statement of constitution of the party in the proceedings concerning the order registered under no. 88 of the register of orders of 2025, profiles of unconstitutionality of the contested provision are raised in relation to constitutional or conventional parameters different from those indicated by the referring judge. In this regard, it must be reiterated that in the incidental constitutional legitimacy proceedings, questions or profiles of constitutionality raised only by the parties and therefore aimed at expanding or modifying the content of the order of reference cannot be examined (judgments no. 112 and no. 50 of 2024, no. 215, no. 184 and no. 161 of 2023).

5.– The exceptions of manifest inadmissibility of the questions raised by the State Attorney General's Office due to the failure to identify the constitutional parameters to be used as a reference for them; due to the omission of reasoning on their relevance; due to the erroneous reconstruction of the normative framework; due to the lack of relevance of the questions, as far as the order registered under no. 88 of the register of orders of 2025 is concerned, because the referring judge himself deemed the institute of judicial pardon applicable in the specific case, must be rejected.

5.1.– The Judges of the Preliminary Hearing of the Juvenile Courts of Rome and Bari question the constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, as they must rule on requests for suspension of proceedings with probation in proceedings where proceedings are initiated for the felonies provided for by art. 609-bis or art. 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the same Code.

The three orders of reference set out the reasons behind their favorable assessment regarding the possibility of re-education and social reintegration of the respective defendants, outlining a prognostic judgment conducted on the basis of multiple indicators, relating both to the crime committed and to the personality of the minors, manifested also in the period subsequent to the incriminating facts.

In this regard, the aforementioned orders pass the "external" check regarding the relevance of the questions through a non-implausible reasoning of the logical path followed and the reasons why the referring judges state that they must apply the contested provision in the main proceedings (among many, judgments no. 200 and no. 148 of 2024, no. 94 of 2023 and no. 237 of 2022).

5.2.– The referring judges also provide reasoning on the reasons for the impracticability of a constitutional interpretation of the contested provision; whether such reasons are shareable or not is a matter that pertains to the merits (most recently, among many, judgments no. 23 of 2025, no. 163, no. 105 and no. 6 of 2024).

5.3.– The referring judges have also substantiated the challenges with an exhaustive reconstruction of the relevant normative framework and pertinent jurisprudence.

5.4.– As for the deficient indication of the parameters and in particular of articles 27, third paragraph, and 24 of the Constitution, by the orders registered under nos. 45 and 88 of the register of orders of 2025, it is a constant principle that the question of constitutional legitimacy must be scrutinized also with regard to the constitutional parameters not formally invoked, but unequivocally derivable from the order of reference, if such act makes clear, even implicitly, reference to them through the citation of the principles enunciated by them (judgments no. 35 and no. 5 of 2021, no. 227 of 2010 and no. 170 of 2008).

In the present case, the overall tenor of the orders of reference to which the objection in question refers allows the conclusion that the explicit reference to the individualization of procedural and substantive treatment to be applied to the minor defendant clearly evokes the principles of art. 27, third paragraph, of the Constitution (individualization and re-educational purpose of the penalty), while the failure to invoke art. 24 of the Constitution is a profile that, abstractly, could affect the merits of the question, but not its admissibility (judgments no. 244 of 2020 and no. 282 of 2004).

5.5.– Finally, as for the objection concerning the fact that, in the proceedings concerning the order registered under no. 88 of the register of orders of 2025, the referring judge noted the abstract grantability of judicial pardon to the minor, since the application of a penalty not exceeding two years is conceivable, it must be noted that the reasoning on which the referring judge himself deemed the suspension of proceedings with probation for the minor defendant more adequate in the specific case than the granting of judicial pardon fully justifies the choice made. And, as this concerns the application of two procedural institutes left to the particularly qualified appreciation of the Judge of the Preliminary Hearing of the Juvenile Court, it must be held that the evaluation made by the referring judge in this regard passes the test of non-implausibility of the reasoning on the relevance point. Not to mention that case law from the Court of Cassation provides elements that lead to deeming the suspension of proceedings with probation for the minor admissible even in the presence of crimes for which judicial pardon would be abstractly grantable (Court of Cassation, Second Criminal Section, judgment of June 16-July 18, 2016, no. 30435).

6.– Conversely, the exceptions of inadmissibility raised by the Attorney General's Office regarding the questions raised in reference to art. 117, first paragraph, of the Constitution, appear to be founded.

The orders of reference contain a list of European Union and international sources that attest to the role of personal liberty deprivation of convicted minors as a measure of last resort and impose a penitentiary treatment designed around the peculiar needs of the individual. However, the reasons for the alleged antinomy between the specific provision excluding certain types of crimes from juvenile probation and the general principles upheld by the referred interposed international parameters are not illustrated, so that the conflict with these principles is only generically asserted, but not sufficiently argued (among others, judgments no. 135 of 2023 and no. 252 of 2021).

7.– The merits of the other constitutional legitimacy questions can therefore be examined.

In accordance with the *petitum* of the orders of reference, moreover, since the contested provision excludes minors accused of four specifically indicated types of crimes from the possibility of accessing the institute of suspension of proceedings with probation, it is necessary to specify that the examination of the constitutional legitimacy questions will be conducted with reference to the foreseen exclusion of the suspension of proceedings with probation for minors accused of the crimes of sexual violence (art. 609-bis of the Penal Code) and gang sexual violence (art. 609-octies of the Penal Code), aggravated pursuant to art. 609-ter of the same Code.

8.– The questions are not founded with regard to the exclusion of the aforementioned types of crimes (points 9 to 14.2). They are founded, however, for the hypothesis where the mitigating circumstance of "lesser gravity cases" applies to the felony of aggravated sexual violence (point 15.1.).

9.– In the explanatory report to Decree-Law no. 123 of 2023, it was indicated in the preamble that the provision was aimed at introducing "urgent provisions to combat juvenile crime and school evasion, as well as for the protection of minors who are victims of crime, considering the characteristics of greater dangerousness and harm recently acquired by juvenile crime. This is for the purpose of providing a sanctioning and also dissuasive response, which maintains attention on the specificity of the condition of the minor who has committed a crime, intervening on the prerequisites for the applicability of precautionary measures and also providing for an anticipatory procedure, suitable for the reintegration and re-education of the minor who has committed criminal conduct [...]".

Thus, already in Judgment no. 90 of 2025, at point 5.2. of the Considerations in Law, this Court emphasized that "[a]s emerges from the title of the urgent provision, from its preamble and from the preparatory works, Decree-Law no. 123 of 2023 contains a complex of norms united by the objective of facing situations of youth disadvantage and degradation and, at the same time, of combating juvenile crime, in response to criminal episodes of particular gravity, perpetrated by minors to the detriment of minors in the territory of the Municipality of Caivano."

10.– Art. 6 of Decree-Law no. 123 of 2023, as converted, introduced some innovations to the regulation of juvenile criminal proceedings contained in Presidential Decree no. 448 of 1988. During the examination in the Senate of the Republic, in particular, letter c-bis) was added to paragraph 1 of art. 6, which, by inserting paragraph 5-bis into art. 28 of the aforementioned Presidential Decree no. 448 of 1988, excludes the possibility of accessing the institute of suspension of proceedings with probation for a mandatory series of crimes of particular gravity, namely voluntary homicide, limited to the hypotheses aggravated pursuant to art. 576 of the Penal Code, sexual violence and gang sexual violence, limited to the hypotheses aggravated pursuant to art. 609-ter of the Penal Code, and aggravated robbery under the circumstances of art. 628, third paragraph, numbers 2), 3) and 3-quinquies), of the same Code.

11.– It is known that, based on the original regulation of the institute introduced into juvenile proceedings with art. 28 of Presidential Decree no. 448 of 1988 and aimed at assessing the minor's personality at the end of the probationary period, the suspension of proceedings with probation (measure of so-called procedural diversion) could be ordered for any type of crime, regardless of the type and the abstractly provided penalty, as well as the possible existence of a criminal record, the quantum of the statutory penalty being relevant only for the duration of the probationary period. This drew a radical difference from the suspension of proceedings with probation provided for in adult proceedings (arts. 464-bis et seq. of the Code of Criminal Procedure): the institute contemplated within juvenile proceedings, characterized by the absence of obstructive preclusions, constituted the privileged alternative solution to the minor's conviction, as a form of re-educational intervention grafted onto the procedural phase.

Moreover, both in the case of juvenile probation (art. 29 of Presidential Decree no. 448 of 1988) and in the case of adult probation (art. 168-ter of the Penal Code), a positive outcome of the probation leads to the extinction of the crime.

12.– As this Court has repeatedly observed (most recently, judgments no. 23 and no. 8 of 2025, no. 139 of 2020), the regulation of juvenile probation has been characterized, since its introduction into the legal system, precisely by its essentially re-educational and social reintegration purpose, remaining unbound in its *an* from a relationship of proportionality to the gravity of the crime for which proceedings are initiated, and entrusted, in the perspective of the adequate protection of youth under art. 31, second paragraph, of the Constitution, solely to the discretion of the Judge of the Preliminary Hearing of the Juvenile Court and the Juvenile Court itself, i.e., a collegiate judge characterized by the presence of two honorary members, "structurally capable of assessing the personality of the minor" (judgment no. 139 of 2020).

This did not mean postulating a generalized and indiscriminate access of the minor defendant to probation, as the judge is rather entrusted with the delicate task of directing his investigation to the search for elements that allow him to assess whether the recourse to said institute is appropriate, for the purpose both of the re-education and positive reintegration of the minor into society, and of the need to ensure the prevention of the danger that he may commit other crimes; elements to be identified in the type of crime committed, in the methods of its execution, in the motives for delinquency, in the defendant's criminal record, in his personality, in his character, and in anything else useful for formulating such a judgment.

13.– Judgment no. 8 of 2025, moreover, has already highlighted the considerable innovative scope of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988 compared to the pre-existing normative framework, finding in this provision a *iuris et de iure* presumption of gravity of the conduct constituting the crimes listed therein, such as to prevent any possibility that the minor – beyond the concrete circumstances of the conduct carried out and disregarding the assessment of his actual possibilities of recovery and social reintegration – be removed from the procedural circuit aimed at establishing responsibility and, eventually, imposing a penalty.

Even in the changed regulatory framework, however, there remains a teleological heterogeneity between adult probation and juvenile probation, since the latter is rooted and finds its *raison d'être* in the purposes of art. 31, second paragraph, of the Constitution, expressing an eminently re-educational function, while the former has an undeniable punitive component (judgments no. 23 of 2025, no. 139 and no. 75 of 2020, no. 68 of 2019).

This Court has repeatedly reaffirmed, in fact, that "[t]he qualifying feature of the institute is represented by the adoption of an intervention project that translates into a series of individualized prescriptions with variable content because they are tailored to the personological profile of the minor and the socio-family context in which he is placed" (judgment no. 8 of 2025).

14.– Given the foregoing, the Panel deems that even in the matter of juvenile criminal law – in which the re-educational function of the penalty acquires a role of special preeminence, in light of art. 31, second paragraph, of the Constitution (judgments no. 23 of 2025, no. 231 of 2021, no. 139 of 2020, no. 263 and no. 68 of 2019, no. 90 of 2017 and no. 125 of 1995) – a margin of discretion cannot be denied to the legislator in identifying the access requirements for procedural diversion instruments, also in light of the particular relevance of the legal interest protected; this, provided that the punitive reaction to the crime committed, and even more so the criminal proceedings themselves, in any case retain that special vocation to favor the re-education of the minor that characterizes the "constitutional face" of juvenile criminal law.

Faced, therefore, with crimes, such as those under examination by this Court, seriously harmful to the rights of the injured parties, especially when they are also minors, the legislator's choice to provide in any case for a trial, according to rules specifically calibrated on the needs of the minor defendant, in the general prevention perspective of providing a dissuasive response to certain forms of juvenile crime, cannot be considered unreasonable.

The legislator's determination to exclude the suspension of proceedings with probation for minors for the felonies under articles 609-bis and 609-octies, when aggravated pursuant to art. 609-ter of the Penal Code, therefore, cannot be censured in this venue: the exclusion from probation was, in fact, narrowly circumscribed, with a mandatory wording, to certainly serious crimes, often committed, as in this case, by minors to the detriment of minors; so that the contested provision is not equivalent to arbitrary action, as it can still be rationally justified in relation to the pursued purposes and the chosen means are not manifestly disproportionate to those purposes (judgment no. 46 of 2024).

14.1.– The questions by which the referring judges assume the unreasonableness of the contested provision because it has precluded juvenile probation also with regard to less serious crimes than others that still allow it (overall, the referring judges indicate the felonies of production, sale, and distribution of child pornography, mass murder, terrorism, mafia association felonies, or kidnapping for ransom) are also unfounded.

These challenges are, in fact, based on a comparative judgment that clearly evokes as reference terms the statutory frameworks of the types of offenses, allegedly more serious, not contemplated by art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988; these are, however, elements that do not show profiles of homogeneity between the indicated felonies and those under consideration here (arts. 609-bis and 609-octies, aggravated pursuant to art. 609-ter of the Penal Code), if one considers that the legislator's choice in this case was inspired, as already mentioned, by the assessment of the specific needs of combating certain more frequent forms of juvenile crime, harmful, as far as this is concerned, to the sexual liberty of the victims.

14.2.– Therefore, the questions of constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, challenged in reference to articles 3, 27, third paragraph, and 31, second paragraph, of the Constitution, in the part where it establishes that the provisions of paragraph 1 of the same art. 28, concerning the suspension of proceedings with probation, do not apply to the felonies provided for by articles 609-bis, first and second paragraphs, and 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the same Code, are not founded.

15.– The contested norm proves instead manifestly unreasonable and disproportionate in the part in which it ranks aggravated sexual violence among the "obstructive" crimes to probation, even when it concerns the "lesser gravity cases" referred to in art. 609-bis, third paragraph, of the Penal Code.

Since paragraph 5-bis of art. 28 of Presidential Decree no. 448 of 1988 has delineated a *iuris et de iure* presumption of gravity of the conduct constituting the contemplated crimes, it appears unreasonable that the preclusion operates when the special effect mitigating circumstance of lesser gravity under art. 609-bis, third paragraph, of the Penal Code is configured, abstractly referable also to the circumstances provided for by art. 609-ter of the same Code in relation to the degree of compromise of the protected legal interest, the execution methods, and the overall consideration of the fact.

The abstract legislative prognosis, in the negative sense regarding the actual possibilities of recovery and social reintegration of the minor through the process of suspension of proceedings with probation, underlying art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, manifestly unreasonably frustrates the *ratio* underlying the mitigating circumstance in question; it is, in fact, a mitigating circumstance that, as this Court has already stated, is placed precisely "as a tempering of the effects of the concentration in a single crime of conduct, very different from each other, which however affect the sexual liberty of the injured party, and of the consequent different intensity of the injury to the legal object of the crime" (judgments no. 106 of 2014 and no. 325 of 2005; in the same sense, judgment no. 91 of 2024).

15.1.– The same interpretive reconstruction of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, understood as a provision inspired by the legislator's intention to exclude juvenile probation in relation to criminal offenses that cause particular social alarm, leaves it without reasonable justification as regards hypotheses of significantly lower gravity than that normally associated with the realization of a fact conforming to the abstract figure.

The unreasonableness arises from the fact that, for less serious sexual violence, the third paragraph of art. 609-bis of the Penal Code provides for the possibility of reducing the penalty by a particularly significant measure, i.e., up to two-thirds. This significant recognition of the lesser gravity of the fact at the substantial criminal level does not correspond to an adequate, different consideration of the same conduct with regard to the institute of suspension of proceedings with probation.

The "safety valve" provided by the third paragraph of art. 609-bis of the Penal Code can therefore serve as a boundary beyond which the threshold of manifest unreasonableness is overcome due to the lack of provision for the faculty of the juvenile judge to order the suspension of proceedings with probation based on an individualized assessment of the minor's personality, functional to the needs of his recovery and social reintegration. An imperative of coherence, through internal lines of the system, therefore requires that this specificity also be recognized within the institute of probation.

16.– With Judgment no. 202 of 2025, art. 609-octies of the Penal Code was declared unconstitutional, in the part where it does not provide that, also with regard to the felony of gang sexual violence, in cases of lesser gravity the penalty is reduced by an amount not exceeding two-thirds.

The reasons that lead to the declaration of unconstitutionality of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in the part where it provides that the provisions of paragraph 1 of the same art. 28 do not apply to the felony provided for by art. 609-bis of the Penal Code, aggravated pursuant to art. 609-ter of the Penal Code, even in the "lesser gravity cases" referred to in the third paragraph of art. 609-bis of the same Code, must also apply with reference to the crime under art. 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the Penal Code, when the attenuating circumstance of lesser gravity occurs.

17.– Therefore, in light of the foregoing considerations, the unconstitutionality of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988 must be declared, for violation of art. 3 of the Constitution, in the part where it provides that the provisions of paragraph 1 of the same art. 28 do not apply to the felonies provided for by articles 609-bis and 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the Penal Code, even when the attenuating circumstance of "lesser gravity cases" occurs.

for these reasons

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares the unconstitutionality of art. 28, paragraph 5-bis, of Presidential Decree of September 22, 1988, no. 448 (Approval of provisions on criminal proceedings against juvenile defendants), in the part where it provides that the provisions of paragraph 1 of the same art. 28 do not apply to the felonies provided for by arts. 609-bis and 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the Penal Code, even when the attenuating circumstance of "lesser gravity cases" occurs;

2) declares inadmissible the questions of constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, raised, in reference to art. 117, first paragraph, of the Constitution, by the Judge of the Preliminary Hearing of the Juvenile Court of Rome and by the Judge of the Preliminary Hearing of the Juvenile Court of Bari, with the orders indicated in the heading;

3) declares unfounded the questions of constitutional legitimacy of art. 28, paragraph 5-bis, of Presidential Decree no. 448 of 1988, in the part where it provides that the provisions of paragraph 1 of the same art. 28, concerning the suspension of proceedings with probation, do not apply to the felonies provided for by articles 609-bis, first and second paragraphs, and 609-octies of the Penal Code, aggravated pursuant to art. 609-ter of the same Code, raised, in reference, overall, to articles 3, 27, third paragraph, and 31, second paragraph, of the Constitution, by the Judge of the Preliminary Hearing of the Juvenile Court of Rome and by the Judge of the Preliminary Hearing of the Juvenile Court of Bari, with the orders indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 23, 2025.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on December 29, 2025

 

The anonymized version is textually consistent with the original