JUDGMENT NO. 207
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following
JUDGMENT
in the constitutional legitimacy review proceedings of Article 635, fifth paragraph, of the Penal Code, initiated by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, in the criminal proceedings against L.S.M. by order of March 31, 2025, registered under no. 85 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 21, special series, of the year 2025.
Heard in the council chamber on December 1, 2025, the Reporting Judge Luca Antonini;
Deliberated in the council chamber on December 1, 2025.
Facts Considered
1.– By order of March 31, 2025, registered under no. 85 of the register of orders for 2025, the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy, with reference to Article 3 of the Constitution:
a) primarily, concerning Article 635, fifth paragraph, of the Penal Code;
b) secondarily, concerning Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage to things indicated in Article 625, first paragraph, number 7), of the Penal Code, as set forth in the preceding second paragraph, number 1);
c) further secondarily, concerning Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage to things indicated in the preceding second paragraph, number 1), only to things exposed to public trust out of necessity, custom, or designation.
2.– Article 635, fifth paragraph, of the Penal Code establishes that, for the offenses under the preceding four paragraphs, which govern as many specific instances of willful damage, "the conditional suspension of the sentence is conditional upon the elimination of the harmful or dangerous consequences of the crime, or, if the convicted person does not object, upon the performance of unpaid work for the benefit of the community for a specified time, not exceeding the duration of the suspended sentence, in the manner indicated by the judge in the sentencing judgment.”
3.– The referring court reports that it is called upon to adjudicate a person charged with the crime of willful damage to property exposed to public trust, for having intentionally deteriorated a motor vehicle parked on the roadway by throwing several objects, "including a bicycle and some beer cans […] from the balcony of an apartment, located on the third floor,” from which he "certainly saw that the vehicle was parked in the street immediately below.”
After observing that the investigations conducted would establish the defendant's liability and having ruled out that the act could be considered of particular insignificance pursuant to Article 131-bis of the Penal Code, the referring court notes that, in this case, the penalty may be kept within the limit of two years of imprisonment, and forms a favorable prognosis regarding the defendant’s abstention from committing further offenses in the future, with the consequence that the benefit of the conditional suspension of the sentence could be granted.
The issues raised are therefore relevant, given the applicability of Article 635, fifth paragraph, of the Penal Code, which, by virtue of its clear wording, which renders a constitutionally oriented interpretation impracticable, requires the judge to make the aforementioned benefit conditional upon the elimination of the harmful or dangerous consequences of the crime, or, if the convicted person does not object, upon the performance of unpaid work for the benefit of the community for a specified time.
4.– Regarding the non-manifest unfoundedness, the Florence Court notes that, based on the provisions of Article 165 of the Penal Code, the conditional suspension "may” be conditioned upon the fulfillment of certain obligations (first paragraph) and, only if granted to a person who has already benefited from it, "must” necessarily be conditioned upon them (second paragraph).
Article 635, fifth paragraph, of the Penal Code, instead, binds the judge to make the suspension conditional upon the aforementioned obligations in any case and, therefore, even when the convicted person has no prior convictions.
Having established the above, the referring court raises, in a secondary manner, three issues.
4.1.– Primarily, it questions the constitutional legitimacy of Article 635, fifth paragraph, of the Penal Code, as this provision allegedly provides "unreasonably for an automatic outcome.”
In this regard, it recalls that, as affirmed by this Court in Judgment no. 49 of 1975, the conditionality of the benefit in question, on the one hand, constitutes a direct instrument "to ensure that the conduct of the offender, subsequent to the conviction, concretely conforms to that process of repentance, the realization of which […] constitutes the primary purpose of the institution of the conditional suspension of the sentence itself […]”; and, on the other hand, it represents the result of "a motivated, but discretionary, assessment” by the judge.
This assessment, the referring court emphasizes, should therefore concern "what is concretely most appropriate” to achieve the aforementioned objective of the offender’s repentance.
From this perspective, the conditionality would be "comprehensibly” mandatory, pursuant to the aforementioned Article 165, second paragraph, of the Penal Code, when the conditional suspension is granted to subjects who have committed a further crime after having already benefited from it, as this circumstance reveals, *a posteriori*, the insufficiency of the threat of revocation of the suspension itself to achieve the punitive purpose of rehabilitation.
Conversely, the challenged Article 635, fifth paragraph, of the Penal Code precludes the judge from making any discretionary assessment "even in the case of entirely unconvicted subjects,” whose repentance could be adequately ensured by the mere threat of revocation in the event of committing a further offense.
4.2.– Secondarily, the referring court asserts the constitutional illegitimacy of Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the willful damage provided for in the preceding second paragraph, number 1), concerning "things existing in public offices or establishments, or under seizure or attachment, or exposed to public trust out of necessity, custom, or designation, or intended for public service or public utility, defense, or reverence.”
According to the referring court, the challenged norm violates the principle of equality, as it provides for a discipline unjustifiably different from that reserved for aggravated theft, as per Article 625, first paragraph, numbers 2) and 7), of the Penal Code, when committed with violence against things and concerning the same assets just mentioned.
For the latter offense, in fact, the provisions of Article 165, first and second paragraphs, of the Penal Code would be applicable, without the subordination of the conditional suspension necessarily being required, as is the case for the crime of willful damage.
The Florence Court observes, first of all, that "the crime of aggravated theft constitutes a complex offense, within which the constituent elements of willful damage” end up constituting aggravating circumstances, as the absorption of the latter into the former is established in jurisprudence.
Therefore, it asserts the homogeneity of the offenses compared, as crimes of damage, which affect property and concern the same assets. Moreover, the theft under Article 625, first paragraph, numbers 2) and 7), of the Penal Code would be "more serious” than the willful damage under Article 635, second paragraph, number 1), of the Penal Code, because the former is punished with imprisonment from three to ten years, as well as a fine, and the latter with imprisonment from six months to three years.
For the integration of the subjective element of willful damage, on the other hand, generic or potential intent would suffice, whereas for theft the specific purpose of profit would be necessary, "also from this perspective [confirming] the greater seriousness” of the latter offense.
Finally, the homogeneity of the compared instances was recognized by the legislator itself with Legislative Decree no. 31 of March 19, 2024 (Supplementary and corrective provisions to Legislative Decree no. 150 of October 10, 2022, implementing Law no. 134 of September 27, 2021, delegating the Government for the efficiency of criminal proceedings and concerning reparative justice and provisions for the speedy conclusion of judicial proceedings). In fact, the introduction of prosecution upon complaint also for the willful damage of things exposed to public trust was deemed, according to the explanatory report to the aforementioned legislative decree, "necessary to align the prosecution regime of this offense with that provided for the analogous and more serious offense under Article 625 of the Penal Code.”
4.3.– Further secondarily, in the event that this Court "should deem the object of the question too broad,” the referring court denounces Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage only to things exposed to public trust.
5.– The President of the Council of Ministers did not intervene in the proceedings.
Legal Considerations
1.– With the order indicated in the heading (reg. ord. no. 85 of 2025), the Court of Florence, First Criminal Section, sitting as a single judge, raises three questions of constitutional legitimacy.
1.1.– Primarily, the referring court challenges the entirety of Article 635, fifth paragraph, of the Penal Code, which establishes that, for the crimes of willful damage under the preceding paragraphs, "the conditional suspension of the sentence is conditional upon the elimination of the harmful or dangerous consequences of the crime, or, if the convicted person does not object, upon the performance of unpaid work for the benefit of the community for a specified time, not exceeding the duration of the suspended sentence, in the manner indicated by the judge in the sentencing judgment.”
By imposing, even in the presence of unconvicted persons, the subordination of the conditional suspension to the fulfillment of the aforementioned obligations, the challenged provision allegedly provides "unreasonably for an automatic outcome,” in violation of Article 3 of the Constitution, since the repentance of these subjects could be ensured by the mere threat of revocation of the conditional suspension in the event of commission of further offenses.
2.– The question is unfounded.
The interpretative premise from which the referring court proceeds, namely that the subordination provided for in Article 635, fifth paragraph, of the Penal Code is always mandatory, is correct.
The literal wording of the provision is, in fact, unequivocal in imposing it, and it is therefore not subject to discretionary assessment by the judge (Court of Cassation, Fifth Criminal Section, Judgment of March 6–April 16, 2025, no. 15143).
2.1.– However, this does not result in an intrinsically irrational automatic outcome.
In this regard, it is first necessary to specify that, following multiple amendments, the most significant of which was introduced by Article 2, paragraph 1, letter l), of Legislative Decree no. 7 of January 15, 2016 (Provisions regarding the repeal of crimes and the introduction of civil pecuniary offenses, pursuant to Article 2, paragraph 3, of Law no. 67 of April 28, 2014), Article 635 of the Penal Code now defines willful damage as a multi-offensive crime.
Following the 2016 reform, in fact, "willful damage is no longer to be considered a figure generically and exclusively aimed at protecting movable and immovable property, but rather as a hypothesis that protects its integrity when the aggression is accompanied by specific methods (for example, violent or threatening, under Article 635, first paragraph, of the Penal Code), contextual conditions (for example, during demonstrations held in public or publicly accessible places, under Article 635, third paragraph, of the Penal Code), or a particular quality of the object of the crime (Article 635, second paragraph, of the Penal Code)” (Judgment no. 212 of 2024).
It must also be clarified that the offense under Article 635 of the Penal Code is a "crime of damage” and that the subjective element is constituted by "generic” intent (further, Judgment no. 212 of 2024).
Although *animus nocendi* (intent to harm) is not necessary, the intent for the crime of willful damage, therefore, in any case requires "knowledge and will to cause damage” (among many, Court of Cassation, Sixth Criminal Section, Judgment of September 18–19, 2012, no. 35898), even in the form of potential intent.
Furthermore, the aforementioned offense, as noted in legal doctrine, results, in the majority of cases, in acts of senseless vandalism, as characterized by a mere destructive motivation, as is emblematically evident from the instance object of the *a quo* proceedings, in which the defendant threw a bicycle and other objects from the balcony of his dwelling, located on the third floor of a building, onto a motor vehicle parked in the street.
2.2.– In this context, the challenged norm does not dictate an intrinsically irrational discipline in requiring that the conditional suspension always be made conditional, even in the presence of unconvicted persons, "upon the elimination of the harmful or dangerous consequences of the crime, or, if the convicted person does not object, upon the performance of unpaid work for the benefit of the community for a specified time, not exceeding the duration of the suspended sentence, in the manner indicated by the judge in the sentencing judgment.”
This Court has, in fact, emphasized that the conditional suspension promotes the rehabilitation of the offender not only through the threat of its revocation, but also "through reparatory, restorative, or rehabilitative obligations,” which confer "a positive re-socializing content also” on the benefit (Judgment no. 208 of 2024).
Indeed, the challenged norm is characterized by a strong rehabilitative vocation, made evident precisely by the requirements it contemplates, which result, one, in the reintegration of the *status quo ante*, which allows the offender to gain greater awareness of the harmful consequences derived from their illicit conduct; the other, in the performance of unpaid work for the benefit of the community, with a clear reference to the bond of solidarity that must link associates within civil life.
This rehabilitative purpose, which aims to foster a "critical reappraisal of the illicit conduct committed” (Cass. no. 15143 of 2025), is entirely overlooked by the referring judge, who limits himself to considering the deterrent effect which, in his opinion, would already be achieved by the threat of revocation of the benefit in case of commission of a further offense.
2.3.– Moreover, while it is true that this Court has, on several occasions, expressed a preference for individualized assessments, due to the risk that the repressive option might end up "casting the rehabilitative profile into the shadows” (Judgment no. 24 of 2025), this does not mean that every legislative option that imposes a specific solution on the judge constitutes an irrational legislative automatism *per se*.
Therefore, the legislative choice aimed at strengthening the re-socializing function that the conditional suspension exercises within the sanctioning system is not arbitrary.
Furthermore, according to established constitutional jurisprudence, the legislator enjoys "broad discretion […] in shaping” the conditional suspension (among many, Order no. 296 of 2005), to the point that the regulation of the institution remains entrusted to the discretionary assessment "of the legislator in a general and abstract manner, even before that of the judge” (Judgment no. 85 of 1997 and Order no. 475 of 2002).
Such discretionary assessments by the legislator may also result in "differentiating certain categories of crimes,” even precluding the very granting of the benefit in relation to offenses that, irrespective "of the statutory penalty provided for them,” concern "conduct particularly serious in the common understanding” (Judgment no. 85 of 1997).
From a similar perspective, it has been affirmed, for instance, that the legislator "has, with an assessment immune from constitutional censure, deemed that – regardless of the seriousness of the conduct carried out by the convicted person, and the severity of the penalty imposed on him – the individual dangerousness evidenced by the violation of another's domicile constitutes a sufficient reason to generally deny convicts for the crime [of home invasion] the benefit of the suspension of the committal order, pending case-by-case assessment by the supervisory court of the possibility of granting the individual convict the benefits compatible with his crime classification and the duration of his sentence” (Judgment no. 216 of 2019).
Moreover, recently, when examining the norm that prevents the judge from imposing the alternative sanctions to short prison sentences for certain criminal offenses, this Court affirmed that "the legislator cannot be denied broad discretion in determining the objective limits within which the application of such sanctions is possible for the judge,” even by "reference […] to specific crime classifications,” "as long as, with respect to the objective exclusions provided for certain crimes, the legislator’s choice does not appear manifestly unreasonable”; this according to "a common technique in the structure of the Penal Code, available to the legislator whenever it intends to define the scope of application of measures that prefigure an alternative penal outcome to incarceration” (Judgment no. 139 of 2025).
In conclusion, if, as stated above, the legislator is not prohibited from precluding the very benefit of conditional suspension for certain crimes, in this case, the definition of *quomodo* (how) of the said suspension, through its necessary subordination to the fulfillment of specific obligations, does not constitute an irrational and *a priori* legislative automatism.
Furthermore, in a complex legal system such as criminal law, the legislator cannot be contested solely on the lack of purely geometric rationality.
3.– Secondarily, the referring court raises a question of constitutional legitimacy of Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the willful damage of things indicated in Article 625, first paragraph, number 7), of the Penal Code.
According to the referring court, an unjustified disparity of treatment occurs, in violation of Article 3 of the Constitution, compared to the "analogous and more serious” instance of aggravated theft because it concerns the same assets and is committed with violence against things, for which the subordination of the conditional suspension is not mandatory.
3.1.– This question is also unfounded.
Even considering the common elements between the two offenses compared, the typical conduct remains clearly distinct, thus excluding the "full homogeneity of the situations placed in comparison” (Judgment no. 76 of 2019). The offenses in question, in fact, differ in the purpose of the conduct, since in theft "the intent of the agent [is] directed towards appropriation,” whereas in willful damage it is directed "at mere deterioration” of the thing (among many, Court of Cassation, Fourth Criminal Section, Judgment of October 29–November 28, 2024, no. 43376; Fifth Criminal Section, Judgment of October 27, 2022–January 16, 2023, no. 1359; Fifth Criminal Section, Judgment of November 11–December 12, 2022, no. 46852).
In this sense, violence against things, while in theft it constitutes a means to the end of realizing the act of taking, to the point of being absorbed by it (Judgment no. 207 of 2023), in willful damage is normally an end in itself and expresses a particular indifference towards the property of others.
Since there is no structural homogeneity between the compared instances, the legislative choice to provide, with regard to the crime of willful damage, for a different rehabilitative path than that contemplated for theft committed with violence against things is therefore not manifestly unreasonable.
3.2.– From this perspective, the emphasis placed by the referring court on the greater seriousness of the latter offense, as it is punished with a more severe statutory penalty than that provided for willful damage, is also unconvincing.
The *ratio* of the subordination in question lies, in fact, principally in the rehabilitative function of the penalty in light of the specificity of the crime under consideration, with the statutory penalty provided by the legislator being secondary in this respect.
Moreover, *a fortiori*, it must be recalled that, according to the jurisprudence of this Court, the legislator is not even precluded from denying the very granting of the benefit of conditional suspension of the sentence with reference to "conduct particularly serious in the common understanding,” even, ultimately, regardless of the "statutory penalty provided for them” (Judgment no. 85 of 1997).
3.3.– The argument put forward by the referring court emphasizing that Legislative Decree no. 31 of 2024 provided for prosecution upon complaint also for the crime of willful damage to things exposed to public trust, thereby aligning its regime with that of theft, is also not valid.
Prosecution upon complaint, in fact, serves a different purpose than the subordination of the conditional suspension, as the former is also aimed at ensuring a significant reduction in judicial workload (among many, Judgment no. 9 of 2025), and the latter, as stated, essentially at realizing the rehabilitative function of the penalty.
Consequently, the alignment between the two offenses regarding prosecution does not make the omission of alignment also regarding the conditional suspension arbitrary.
4.– Further secondarily, the Florence Court finally denounces Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage under the preceding second paragraph, number 1), limited to conduct concerning things exposed to public trust out of necessity, custom, or designation.
Although it does not expressly provide reasoning on this point, from a comprehensive reading of the referring order, it is clearly inferred that the referring court considers the challenged norm to violate the principle of equality for the same reasons put forward in support of the previous question.
4.1.– The same considerations just set forth consequently lead, clearly, to the finding that this question is also unfounded.
for these reasons
THE CONSTITUTIONAL COURT
1) declares the question of constitutional legitimacy of Article 635, fifth paragraph, of the Penal Code, raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading, unfounded;
2) declares the question of constitutional legitimacy of Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage, as per the preceding second paragraph, number 1), to things indicated in Article 625, first paragraph, number 7), of the Penal Code, raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading, unfounded;
3) declares the question of constitutional legitimacy of Article 635, fifth paragraph, of the Penal Code, insofar as it applies to the crime of willful damage, as per the preceding second paragraph, number 1), to things exposed to public trust out of necessity, custom, or designation, raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading, unfounded.
Decided thus in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 1, 2025.
Signed:
Giovanni AMOROSO, President
Luca ANTONINI, Rapporteur
Igor DI BERNARDINI, Registrar
Filed with the Registry on December 29, 2025
The anonymized version conforms, in text, to the original