ORDER NO. 209
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
ORDER
in the judgment concerning the constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, initiated by the Judge for Preliminary Hearings of the Ordinary Court of Genoa, in the criminal proceedings against W. J. by means of an order dated March 27, 2025, registered under no. 98 of the register of orders of 2025 and published in the Official Gazette of the Republic no. 23, special first series, of the year 2025.
Heard in the private session of December 1, 2025, the Reporting Judge Stefano Petitti;
deliberated in the private session of December 1, 2025.
Considering that, by order of March 27, 2025, registered under no. 98 of the register of orders of 2025, the Judge for Preliminary Hearings of the Ordinary Court of Genoa raised questions of constitutional legitimacy regarding Article 69, fourth paragraph, of the Penal Code, in reference to Articles 3 and 27 of the Constitution, insofar as it provides for the prohibition of granting precedence to the mitigating circumstance of slight gravity, introduced by this Court’s Judgment No. 86 of 2024, over the aggravating circumstance of repeated recidivism pursuant to Article 99, fourth paragraph, of the Penal Code;
that the referring judge states that he must rule, under the conditional abbreviated procedure, on the charges of improper robbery and unjustified possession of altered keys and lock picks against an individual who, having entered a church, stole a box containing sixty matches and pushed the parish priest to flee;
that, as reported by the referring judge, during the discussion, both the Public Prosecutor and the defendant's defense counsel, the latter subordinately to acquittal, requested the application of the mitigating circumstance of slight gravity introduced by the aforementioned Judgment No. 86 of 2024; the defense counsel also requested, should the contested repeated recidivism be ascertained, to raise a question of constitutional legitimacy regarding the prohibition of precedence provided for by Article 69, fourth paragraph, of the Penal Code;
that, in the opinion of the referring judge, the question is relevant, as there is no doubt regarding the legal classification of the facts as improper robbery; the prerequisites for repeated recidivism are also present, having been previously applied in five other sentences of conviction for crimes against property and against the person, indicating the defendant's increased social dangerousness; finally, the conditions required by this Court’s Judgment No. 86 of 2024 are met, given the modesty of the act, consisting of the theft of a package of sixty matches from a church, returned intact to law enforcement, and a push against the seventy-year-old parish priest which neither caused him to fall nor resulted in injuries;
that, according to the referring judge, the application of the mitigating circumstance of slight gravity introduced by this Court to the crime of robbery is not precluded by the concurrent recognition of the mitigating circumstance pursuant to Article 62, first paragraph, number 4), of the Penal Code, since case law of the Supreme Court has recognized the autonomy of the two mitigating circumstances and the admissibility of their distinct assessment (referencing the Court of Cassation, Second Criminal Section, judgment of December 4-13, 2024, no. 45792). Article 69, fourth paragraph, of the Penal Code, therefore, prevents the referring judge from granting precedence, in the balancing judgment between circumstances, to the mitigating circumstance introduced by this Court over repeated recidivism, meaning the questions are relevant;
that, in the opinion of the referring judge, the questions are also not manifestly unfounded based on the judgments of this Court which have already declared the partial unconstitutionality of Article 69, fourth paragraph, of the Penal Code, in relation to specific mitigating circumstances;
that, specifically, Judgment No. 141 of 2023 removed the prohibition of precedence concerning the mitigating circumstance pursuant to Article 62, first paragraph, number 4), of the Penal Code, while other decisions of this Court introduced the mitigating circumstance of slight gravity to remedy the manifest disproportion between the penalty and the objective gravity of the facts, in reference to the crime of extortion (Judgment No. 120 of 2023) and to the crime of proper and improper robbery (Judgment No. 86 of 2024);
that, the referring judge observes, the prohibition of precedence under Article 69, fourth paragraph, of the Penal Code, due to the abnormal emphasis placed on recidivism, violates the principle of the necessary proportionality of the penalty to the offensiveness of the act, which is essential for achieving the penalty's rehabilitative purpose (Article 27, third paragraph, of the Constitution), as well as the principles of individualization of the penalty, reasonableness, and equality, resulting in the imposition of the same penalty for conduct significantly different in terms of offensiveness;
that neither the President of the Council of Ministers nor the defendant in the original proceedings appeared in the hearing.
Considering that, with the order indicated in the heading, the Judge for Preliminary Hearings of the Court of Genoa raised a question of constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, insofar as it provides for the prohibition of granting precedence to the mitigating circumstance of slight gravity, introduced by this Court’s Judgment No. 86 of 2024, over the aggravating circumstance of repeated recidivism pursuant to Article 99, fourth paragraph, of the Penal Code;
that, in the opinion of the referring judge, this omission violates the principles of individualization and necessary proportionality of the penalty to the offensiveness of the act, which constitute a condition for achieving the penalty's rehabilitative function under Article 27 of the Constitution, as well as the principles of reasonableness and equality under Article 3 of the Constitution, due to the imposition of the same penalty for conduct significantly different in terms of offensiveness;
that, subsequent to this order, this Court, with Judgment No. 117 of 2025, declared the unconstitutionality of Article 69, fourth paragraph, of the Penal Code, insofar as it provides for the prohibition of granting precedence to the mitigating circumstance of slight gravity, introduced by Judgment No. 86 of 2024 in relation to the crime of proper and improper robbery, over the aggravating circumstance of repeated recidivism pursuant to Article 99, fourth paragraph, of the Penal Code;
that, in line with the constitutional case law that had already declared the partial unconstitutionality of Article 69, fourth paragraph, of the Penal Code in relation to mitigating circumstances expressing a lesser disvalue of the act in its offensive dimension, in Judgment No. 117 of 2025 this Court found that the contested provision unreasonably nullifies the function of a "safety valve" at the root of the addition made by Judgment No. 86 of 2024 and prevents the judge from applying different sanctions for situations distinct in terms of the offensiveness of the conduct, in violation of Article 3, first paragraph, of the Constitution, both under the aspect of reasonableness and under the aspect of the principle of equality;
that, furthermore, considering an abstract legal provision characterized by intrinsic variability in the concrete manifestation of its constituent elements, such as that of robbery, the impossibility for the judge to deem the mitigating circumstance prevailing contradicts the principle of individualization of the penalty (Article 27, first paragraph, of the Constitution), which requires taking into account the actual extent and specific needs of individual cases, and the principle of the rehabilitative purpose of the penalty, which must guide both the choices of the legislature in identifying the sanctioning treatment and the decisions of the judges who determine the penalty to be imposed in concrete terms (Judgment No. 86 of 2024);
that the non-derogable prohibition of precedence for the mitigating circumstance under consideration was also deemed incompatible with the principle of proportionality of the penalty, suitable for aiming at the rehabilitation of the convicted person pursuant to Article 27, third paragraph, of the Constitution, which implies a constant principle of proportion between the quality and quantity of the sanction, on the one hand, and the offense, on the other (Judgment No. 117 of 2025, which references Judgment No. 143 of 2021);
that the subsequent declaration of unconstitutionality of the challenged provision, in acceptance of questions overlapping with the present ones, renders the latter deprived of object and, therefore, according to constant case law, results in their manifest inadmissibility (most recently, Order No. 35 of 2025).
for these reasons
THE CONSTITUTIONAL COURT
declares the manifest inadmissibility of the question of constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, raised, in reference to Articles 3 and 27 of the Constitution, by the Judge for Preliminary Hearings of the Ordinary Court of Genoa with the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 1, 2025.
Signed:
Giovanni AMOROSO, President
Stefano PETITTI, Rapporteur
Igor DI BERNARDINI, Chancellor
Filed in the Chancellery on December 29, 2025
The anonymized version conforms, in text, to the original