ORDER NO. 11
YEAR 2026
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, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has issued the following
ORDER
in the constitutional legitimacy review of Articles 280, paragraph 2, and 291 of the Code of Criminal Procedure, in conjunction, instituted by the Ordinary Court of Prato, Criminal Trial Section, in single-judge composition, in the criminal proceedings against M. B., with an order dated September 26, 2017, registered under no. 36 of the registry of orders of 2025 and published in the Official Gazette of the Republic no. 10, first special series, of 2025.
Having considered the brief of intervention by the President of the Council of Ministers;
having heard, in the closed session of November 17, 2025, the Reporting Judge Emanuela Navarretta;
deliberated in the closed session of November 17, 2025.
Whereas that, by order of September 26, 2017 (r.o. no. 36 of 2025), the Ordinary Court of Prato, Criminal Trial Section, in single-judge composition raised questions of constitutional legitimacy regarding Articles 280, paragraph 2, and 291 of the Code of Criminal Procedure, in conjunction, on the grounds that they do not allow the criminal judge to apply a more severe personal precautionary measure than that requested by the Public Prosecutor, in reference to Articles 3, 101, second paragraph, and 112 of the Constitution;
whereas the referring court is required to rule on a request for the application of a penalty upon request of the parties pursuant to Article 444 of the Code of Criminal Procedure within a criminal proceeding against M. B.;
whereas – as set forth by the referring judge – the defendant was arrested on April 19, 2017, for being caught in the act of the crime of possession for the purpose of drug trafficking;
whereas the Public Prosecutor requested the Court of Prato, in single-judge composition, to validate the arrest, charging the arrested person with the offense under Article 81, second paragraph, of the Penal Code and Article 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Text of Laws on the Discipline of Narcotic Drugs and Psychotropic Substances, Prevention, Treatment, and Rehabilitation of Drug Addiction States);
whereas the Court validated the arrest, but, in view of the Public Prosecutor's request to apply the precautionary measure of house arrest, proceeded to a legal reclassification of the act, subsequently ordering – finding serious evidence of guilt and periculum in libertate – the precautionary custody in prison of the defendant;
whereas, following the Public Prosecutor's request to proceed to summary trial and the defendant's request for an extension for defense, the trial was postponed to a subsequent hearing;
whereas, subsequently, the Public Prosecutor requested the revocation of the applied precautionary measure and its replacement with the measure of prohibition from residing in the Municipality of Prato;
whereas the request for substitution of the measure was granted by the same Court of Prato, on the grounds that the defendant did not have a stable residence where appropriate police checks could be carried out to prevent flight, and therefore house arrest could not be ordered;
whereas, according to the referring judge's reconstruction, the defendant's defense then requested, in relation to the crime as originally identified by the Public Prosecutor, the application pursuant to Article 444 of the Code of Criminal Procedure of a sentence of ten months' imprisonment and a fine of EUR 1,000.00, with a suspended sentence;
whereas the Public Prosecutor consented, also agreeing to the request for a suspended sentence;
whereas, following the hearing of the parties for the decision on the plea bargain request, the Court of Prato, Criminal Trial Section, in single-judge composition, raised the present constitutional challenge;
whereas, in the opinion of the referring judge, the current legal framework is governed by the principle of the precautionary motion, according to which the judge cannot order a measure more severe than that requested by the Public Prosecutor, even in the case of legal reclassification of the act;
whereas this prohibition is purportedly derivable from the combined reading of Articles 280, paragraph 2, and 291 of the Code of Criminal Procedure, which allegedly require the judge to strictly adhere, when assessing the applicability of precautionary measures, to the classification made in the precautionary indictment and to the measures requested based on that classification;
whereas, according to the referring judge, the impossibility for the judge to order, instead of house arrest, the measure of custody in prison, even in the event of legal reclassification of the act, would conflict with Articles 3, 101, and 112 of the Constitution;
whereas a violation of Article 3, first paragraph, of the Constitution also exists, in that the contested provisions, in the case of a request for house arrest, prevent the application of the more severe measure of custody in prison and, at the same time, do not allow the application of house arrest to those who lack a residence adequate for the restrictive domiciliary regime, thus creating, for equal precautionary needs, an unreasonable discrimination to the detriment of those who, conversely, have a stable residence;
whereas the provisions subject to the review of this Court also allegedly violate Articles 101, second paragraph, and 112 of the Constitution, as, through an expansion of the powers of the Public Prosecutor, they lead to an unreasonable curtailment of the judge's freedom of judgment, preventing the judge, in the presence of precautionary requests, from identifying the coercive measure appropriate to those needs and thus ensuring the safety of the community;
whereas the President of the Council of Ministers intervened in the proceedings, represented and defended by the Attorney General's Office, requesting that the raised questions be declared inadmissible and, in any case, unfounded;
whereas the Attorney General observes that, in the current stage of the proceedings, the referring court does not have to decide on a precautionary measure request, but only on a plea bargain request, meaning that the contested norms are not relevant, but only those under Articles 444 et seq. of the Code of Criminal Procedure, which do not regulate the adoption of precautionary measures;
whereas the questions are therefore inadmissible, due to lack of relevance;
whereas, on the merits, the Attorney General maintains that the principle of the precautionary motion harmonizes coherently with the constitutional framework of the relationship between the Public Prosecutor and the Judge, and in any case, that the regulation of this framework, in the absence of manifest unreasonableness, falls within the full discretion of the legislator.
Whereas the Ordinary Court of Prato, Criminal Trial Section, in single-judge composition, raised questions of legitimacy concerning Articles 280, paragraph 2, and 291 of the Code of Criminal Procedure, in conjunction, on the grounds that they do not allow the criminal judge to apply a more severe personal precautionary measure than that requested by the Public Prosecutor, holding that they conflict with the principle of equality under Article 3 of the Constitution, as well as with the principles of the judge's subjection solely to the law pursuant to Article 101, second paragraph, of the Constitution, and the principle of mandatory prosecution, under Article 112 of the Constitution;
whereas the referral order was lodged by the referring judge at their registry on September 26, 2017, and only reached this Court, with an inexplicable and reprehensible delay, on February 14, 2025;
whereas the referring judge – seized of a request for plea bargaining with a suspended sentence – complains of the inability to apply a precautionary measure more severe than that requested by the Public Prosecutor, even in the case of legal reclassification of the act;
whereas the raised questions are manifestly inadmissible, since, at the stage at which the proceeding was at the time of the constitutional challenge, there was no request for a precautionary measure advanced by the Public Prosecutor, who, moreover, had consented to the application of the penalty pursuant to Article 444 of the Code of Criminal Procedure and to the suspension of the sentence;
whereas, consequently, the referring judge does not have to apply the contested norms, being deprived at that moment of the decisional power related to the provisions whose constitutional illegitimacy is being challenged;
whereas, consequently, the raised questions are irrelevant for the definition of the dispute, given that the requirement of relevance "necessarily implies that the raised question of constitutional legitimacy has an actual and not merely potential incidence in the proceeding at hand" (Judgment no. 269 of 2022);
whereas, in conclusion, the raised questions are manifestly inadmissible (ex multis, Order no. 41 of 2025).
for these reasons
THE CONSTITUTIONAL COURT
declares manifestly inadmissible the questions of constitutional legitimacy of Articles 280, paragraph 2, and 291 of the Code of Criminal Procedure, raised, in reference to Articles 3, 101, second paragraph, and 112 of the Constitution, by the Ordinary Court of Prato, Criminal Trial Section, in single-judge composition, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on November 17, 2025.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on January 29, 2026
The anonymized version is textually compliant with the original