JUDGMENT NO. 21

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, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy trial concerning Article 95 of the Penal Code, initiated by the Judge for Preliminary Hearings of the Ordinary Court of Bergamo, in the criminal proceedings against J.S. R., with an order dated April 2, 2025, registered under no. 107 of the register of orders for 2025 and published in the Official Gazette of the Republic no. 24, special first series, of 2025.

Having seen the intervention document of the President of the Council of Ministers;

heard in the chamber of council on January 12, 2026, the Reporting Judge Francesco VIGANÒ;

deliberated in the chamber of council on January 12, 2026.

Facts Considered

1.– With an order dated April 2, 2025, registered under no. 107 of the ordinary register for 2025, the Judge for Preliminary Hearings of the Ordinary Court of Bergamo raised questions of constitutional legitimacy regarding Article 95 of the Penal Code, in reference to Articles 3, 27, third paragraph, and 111 of the Constitution, "interpreted as requiring, for the purposes of ‘chronic intoxication,’ the existence of a condition of infirmity, illness, or disorder, with permanent or irreversible effects, and not a chronicity of use.”

In the alternative, the referring judge raised questions of constitutional legitimacy regarding the same provision, in reference to the aforementioned parameters, "insofar as it limits the application of the provisions of Articles 88 and 89 [Penal Code] to cases of chronic intoxication only, for acts committed in the presence of a condition classifiable under the category of dependence disorders or those related to the use of psychotropic substances and not associated with infirmity or other serious personality disorders.”

1.1.– The referring judge states that they must rule, under the summary procedure, on the criminal responsibility of J.S. R., for the crimes of ill-treatment of family members, which the accused allegedly committed against his cohabiting partner, her parents, and his minor brother cohabiting with him, including in the presence of the couple’s minor children, as well as for embezzlement to the prejudice of the partner.

The latter reported that the accused habitually consumed psychotropic substances daily, manifesting increasingly aggressive and violent behavior, particularly "during periods of abstinence or in conjunction with the consumption” of the said substances. These circumstances were confirmed by a series of independent findings, notably the statements of the accused’s father, who on one occasion noticed his son in a state of alteration caused by cocaine use, with paranoid manifestations that led him to request the intervention of the emergency health service. On that occasion, the accused underwent involuntary psychiatric treatment.

On other occasions, police personnel intervened at the accused’s residence, finding him in a highly altered state, overwhelmed by hallucinations and in a state of severe restlessness.

During the preliminary investigations, the preliminary investigation judge ordered an evidentiary hearing to ascertain the accused’s capacity to understand and will. The expert concluded by diagnosing "a condition of ‘chronic intoxication,’ with a stable and irreversible impairment of cell function, classifiable as ‘substance-induced dementia,’ a reduced capacity to ‘resist the impulse of drug addiction, thus favoring the combination of cognitive pathology with the consequences of narcotic substance use,’” and, consequently, a total incapacity to understand and will at the time of the facts, as well as an incapacity to stand trial.” This diagnosis was based on documentation from psychiatric and addiction services that treated the accused, "from which emerged ‘Behavioral abnormalities in Cocaine Abuse Disorder,’ with the development of ‘Substance-induced Psychosis with persecutory ideation and auditory and visual misperceptions of exotoxic origin,’” as well as the outcome of the psychiatric examination, which highlighted "‘cognitive difficulties of an organic nature, of likely toxic genesis’ with a ‘condition of overall impairment of the domains of memory and attention and then those of orientation, indicating torpor typical of organic brain injury likely of toxic nature,’” although without signs of current delusional infection or perceptual parasitism.”

The preliminary investigation judge therefore ordered the provisional security measure of supervised release for the accused, with the obligation to be admitted to a residential community. With a subsequent order, following his refusal to continue treatment, he replaced the measure with provisional admission to the psychiatric ward of the local hospital, pending the availability of a place in a residence for the execution of security measures (REMS).

The public prosecutor having, in the meantime, requested the committal of the accused for trial, the referring judge – at the preliminary hearing – appointed a second expert also to assess the accused’s capacity to stand trial. In the second expert opinion, "with reasoning apparently beyond reproach on a logical level,” the expert nevertheless ruled out "the existence at the time of the facts of psychopathological manifestations [...] capable of excluding or greatly diminishing the capacity to understand and/or will,” pointing out that no "major primary psychiatric disorders” emerged in the accused. Only "episodes of behavioral discontrol with heteroaggressive and sometimes destructive acts, and even clear episodes of psychotic decompensation with florid hallucinations and delusions” were documented, which required admission to the psychiatric ward but were to be considered "strictly related to the direct effects of the substances.”

The second expert therefore excluded the configuration of a "cognitive impairment of such magnitude as to constitute a state of ‘chronic intoxication’ relevant for the purposes of imputability, pointing out that although the existence of a capacity to understand and will at the time of the facts ‘vitiated’ by the psychotropic effect of the abused substance was indisputable, both in terms of intoxication and abstinence (craving, more properly), the same must be considered voluntary, pursuant to Articles 91 et seq. [Penal Code].” Nor was there any recognizable "lasting and irreversible organic damage” capable of rendering Article 95 of the Penal Code applicable, in his opinion.

Heard at the hearing for clarification on the reasons that led him to exclude the configuration of a state of "chronic intoxication,” the second expert expressed the view that the state of chronic intoxication "primarily aris[es] as a consequence of alcohol consumption,” the prolonged abuse of which can lead to "a nosographically defined clinical picture,” characterized by "biological, organic impairments, which can be verified,” whereas regarding narcotics "finding an alteration of this type is almost impossible.” Conversely, regarding cocaine intoxication, the expert clarified that it can cause a more or less intense decline in memory skills, but without leading to "substance use dementia,” characterized by the "decline of all competencies, [of] orientation capacity, [of] self-awareness” and having a "preserved volition” and an "adequate capacity for comprehension”: conditions that, in any case, were not found in the accused.

The expert subsequently provided further clarifications at the hearing, emphasizing, among other things, that, from a neurological point of view, "any substance of a pharmacological or abuse nature causes a cerebral modification, which can transiently persist, but this does not exclude the capacity to realize, understand, and self-determine”; and added that "even any anomalies related to substance use, are either attributable to conditions of disorder, so to speak, ‘unmasked’ by consumption, or are anyway on a functional basis (consequent to the use or the effect of substance exhaustion) and not on an organic basis.”

1.2.– Regarding the relevance of the issues raised, the referring judge emphasizes that, according to what emerges from the investigation records, the accused—twenty-five years old at the time of the facts—had habitually used increasing doses of cocaine since the age of eighteen, showing "unmanageable daily craving,” "behavioral anomalies,” "psychotic episodes symptomatic of a phase of acute exotoxic intoxication” that persisted "well beyond the three-day detection period for cocaine metabolites in urine”; conditions, these, which the referring judge considers "at the root of the aggressive acts constituting the charged ill-treatment and injury.” However, since this state arose "following a situation of substance abuse, derived particularly from the prolonged consumption of cocaine [...], but without the onset—at the organic level—of irreversible or even merely permanent pathological alterations such as to justify a condition of chronic intoxication,” the assessment of the existence of total or partial insanity would be precluded by the contested Article 95 of the Penal Code, despite the accused’s situation being—in the referring judge’s opinion—"apparently capable of affecting his capacity to understand and will (understood as the complex of psychophysical conditions that allow the human being to be considered capable of perceiving the punitive sanction, due to the proper functioning of the intellectual and volitional elements).” Such a concrete assessment of the capacity to understand and will would not be possible even in relation to episodes in which the accused presented "psychotic symptomatology characterized by persecutory ideations, auditory misperceptions, and behavioral discontrol.”

1.3.– Regarding the non-manifest unfoundedness of the issues, the referring judge believes that the contested provision violates the constitutional parameters invoked "insofar as it limits the application of the provisions of Articles 88 and 89 [Penal Code] to cases of chronic intoxication only, for acts committed in the presence of a condition classifiable under the category of dependence disorders or those related to the use of psychotropic substances and not associated with infirmity or other serious personality disorders.”

After reconstructing, also based on the jurisprudence of this Court on the matter, the overall regulation that the Penal Code provides concerning the imputability of a person intoxicated by narcotic substances, the referring judge focuses on the contested Article 95 of the Penal Code and the central requirement of "chronic intoxication,” observing that—according to the current interpretation in forensic medicine—it alludes, "in the presence of chronic substance use,” to a condition of psychiatric "illness”—identifiable even at a distance in time from the cessation of use—. In turn, the concept of "illness” refers to "pathological psychic disorders (clearly different from mere withdrawal syndrome) and attributable to an organic psychosis or a depressive-paranoid or schizo-paranoid pathology.”

Such a notion would be in line with the legislator’s intent expressed in the ministerial report on the 1930 Penal Code draft, where chronic intoxications were considered "partly [...] effects of repeated and prolonged contact with the toxic substance and partly [...] due to the repercussion that each damaged organ can exert on the rest of the organism,” resulting in "very serious nervous and psychic disorders which, even when not permanent, often arise without the ingestion of the poisons that were their distant cause.”

Criminal jurisprudence, for its part, constantly requires, for the recognition of chronic intoxication, "the onset in the subject’s organism of pathological neuro-psychic alterations, stabilized and permanent.” This interpretation constitutes living law.

In the referring judge’s opinion, however, the contested provision—as interpreted by living law—exhibits multiple profiles of constitutional illegitimacy.

1.3.1.– Firstly, it conflicts with the "constitutional parameters of legality, equality, and culpability.”

The approach of living law appears "strongly anchored to the concept and definition of infirmity, understood moreover according to the most traditional and long-standing nosographic model, as a ‘disease of the brain or nervous system,’ resulting in an organic or biological substrate.” Such a model would, however, be "anachronistic” and "no longer justified by the evolution of psychiatric science, which currently embraces an integrated (bio-psycho-social) paradigm that takes into account the medical, psychological, and sociological aspects, each of which is involved in mental illness.”

Precisely in this latter direction, moreover, the jurisprudence of the Court of Cassation in applying Articles 88 and 89 of the Penal Code has settled, starting with the judgment of the United Criminal Chambers of the Court of Cassation, January 25-March 8, 2005, no. 9163. The latter judgment indeed adhered to a "concept of infirmity different and broader than that of illness, in the sense that it is not exclusively limited to true mental illnesses exactly classifiable in psychiatric nosography, but also more extensively includes any pathological condition that has been able to interfere with the capacity to understand and will, even temporarily,” including "personality disorders” classified by the DSM (Diagnostic and Statistical Manual of Mental Disorders).

From this, the referring judge deduces that Article 95 of the Penal Code "is challengeable on the grounds of reasonableness and, consequently, violates the principle of equality under Article 3” of the Constitution, "insofar as it differentiates, in an unjustifiably unfavorable manner, the treatment of the perpetrator who is in a condition of ‘chronic intoxication from alcohol or narcotics’ at the time of the act [...] and the perpetrator who is not in such a condition and to whom the broader concept of infirmity, also including psychic disorders of a non-strictly pathological nature or psychic anomalies attributable to clinical psychopathology but not ascribable to psychiatric diseases in the strict sense, is applicable as a result.”

This unjustified disparity in treatment appears evident, in particular, "with reference to the assessment and treatment provided in relation to forms of addiction entirely comparable to drug addiction or alcoholism, consisting of kleptomania or pathological gambling or ludomania, […] classified in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as a form of addiction on par with those caused by narcotic substances and alcohol.” In the fifth edition of the DSM, moreover, the categories of substance abuse and dependence were "unified into a single disorder, measured on a continuum from mild to severe – the diagnostic criteria for which have been combined into a single list of 11 symptoms.” Aligning with this new classification and substantially in line with the judgment of the United Chambers, the most recent jurisprudence of the Court of Cassation has in fact tended to include ludomania among personality disorders, potentially capable of impairing the capacity to understand and will and, therefore, the very imputability of the perpetrator (in particular, Court of Cassation, Sixth Criminal Section, judgment of May 10-July 18, 2018, no. 33463, is cited).

1.3.2.– Furthermore, the current regulation no longer appears reasonable "on the grounds of coherence,” as it is inspired by "intents of general prevention of particular rigor” regarding the phenomenon of narcotic substance dependence, which have become "entirely incongruous with the changed global context of current society,” in which this dependence is no longer "evaluated in terms of deviance, but as a manifestation of the so-called addiction, conceptualized according to models accredited by medical and sociological sciences as a disorder of the malfunctioning of the brain’s reward circuits (in turn caused by prolonged use) capable of constituting a true pathological impairment, not necessarily irreversible, in the presence of specific contextual characteristics.” It would constitute not "a disease of the brain,” but rather [...] "a disorder incorporated in a social context,” even if triggered by an initial volitional activity, with respect to which "biochemical, as well as psychological, economic, social, and situational factors assume relevance.”

Recent legislative evolution, moreover, is oriented towards taking charge of persons suffering from substance abuse, as they are sick persons in need of care.

With respect to this new conception of dependence, the legal presumptions of imputability underlying Articles 92 and 93 of the Penal Code and the contested provision itself prove to be "unreasonably anachronistic,” also in relation to "the change (or disappearance) of the scientific prerequisites” upon which they were based (on the subject of legislative anachronism, judgments no. 324 of 1998, no. 179 of 1988, and no. 134 of 1985, of this Court, are cited).

1.3.3.– Further profiles of unreasonableness—and therefore of conflict with Article 3 of the Constitution—as well as anomaly with respect to the obligation to provide grounds for judicial decisions under Article 111 of the Constitution, would derive from the "juxtaposition of the condition of chronic intoxication of the drug addict with that of the alcoholic.” In fact, there is "a substantial difference on the clinical, symptomatic, anatomical-pathological, social, and psychological level” between the two types of intoxication, since—unlike what happens with alcoholism—"there is no narcotic substance that induces anatomical damage of such severity as to induce a ‘permanent and irreversible psychic anomaly.’” The alterations in the functioning of brain capacities determined by narcotic substances would be "generally reversible with the cessation of consumption,” unlike acute and chronic psychoses induced by alcohol, such as "delirium tremens,” "alcoholic hallucinosis,” "delusion of jealousy,” "Korsakoff’s syndrome,” and "alcoholic dementia.”

The difference between the two situations grouped by the regulation of Article 95 of the Penal Code determines the necessity for the judge to articulate reasoning "in stereotypical, incongruous, and contradictory formulas,” with a consequent violation of Article 111 of the Constitution.

In any case, the moment when habitual use degenerates into the more or less stable alterations referred to by the legislator cannot be determined with reasonable scientific certainty. Proof of this is the case at issue in the referral, in which the same subject, assessed a few months apart by two different experts, was deemed non-imputable by the first, and imputable by the second, precisely because of a divergent judgment regarding the configuration of a state of chronic intoxication.

Moreover, unlike alcohol, narcotics do not constitute a unitary substance, and they produce entirely different disorders in consumers. This results in "the substantial impossibility of outlining a single clinical and psychiatric picture of chronic intoxication from substances that is objectively measurable.”

1.3.4.– Finally, the contested provision, by "precluding for narcotic substances [...] the ascertainment of a mental state in concreto capable of overcoming the legal fiction under Article 93 [Penal Code],” would conflict with the principles of personality and the rehabilitative purpose of the penalty under Article 27, third paragraph, of the Constitution, "to be understood both as a prohibition imposed on the legislator from resorting to the so-called objective liability, based solely on the mere commission of an unlawful act, and, in cases of possible recognition of partial insanity” pursuant to Article 89 of the Penal Code, "in terms of ‘individualization of the sanctioning treatment’” (judgment of this Court no. 50 of 1980 is cited). On one hand, the principle of the personality of criminal liability requires "a strict link between culpability and the freedom of action and will of man, understood as the capacity of man to self-determine, to choose between multiple alternatives,” and ultimately "as freedom to act otherwise,” it always being necessary to be able to direct an "individual reproach” towards the subject as a prerequisite for his punishability, "in an overall design aimed at guaranteeing the certainty and predictability of human action.” On the other hand, the application of a penalty solely for general preventive reasons "would end up ‘instrumentalizing’ the person, sacrificing his fundamental assets for reasons of criminal policy, in contrast with the so-called personalistic principle that inspires the Constitution.”

The principle of culpability further requires that the penalty be adequately calibrated to the subjective disvalue expressed by the act; a disvalue that, as recalled by judgment no. 73 of 2020 of this Court, "depends decisively not only on the content of the criminal intent (intentional or negligent) and the degree of intent or negligence, but also on the possible presence of factors that influenced the author’s motivational process, making him more or less blameworthy,” among which, in a prominent position, are "precisely the presence of significant pathologies or personality disorders (as defined by the United Criminal Chambers in judgment Cass., no. 9163 of 2005), such as those that forensic science deems capable of diminishing, even without completely excluding, the capacity of the perpetrator to understand and will.” It would therefore be prejudicial to the rehabilitative effectiveness of the penalty, in cases of minor seriousness, to preclude the judge from recognizing a diminished subjective responsibility of the offender, "favoring the application of security measures, certainly more adequate in cases of diminished imputability, as they carry a profile of ‘care’ associated with the containment of dangerousness.”

1.4.– The referring judge therefore questions the practicability of an interpretation of the contested provision capable of overcoming the constitutional illegitimacy vices highlighted so far.

In particular, it is asked whether it is possible to hypothesize the existence of a state of chronic narcotic substance intoxication "in the presence of a condition of infirmity which also includes serious personality disorders that, although lacking nosographic classification and being transient and reversible, are of such substance, intensity, relevance, and seriousness as to effectively affect the capacity to understand and will.” From this perspective, it would be necessary to recognize possible relevance "to the category of ‘Substance-related Disorders’ (Substance Use Disorder – SUD),” recognized by DSM-5 [...], even in the presence of symptomatology that is not permanent or irreversible,” characterized by a list of possible symptoms found in the person over a twelve-month period, and which are in turn attributable—according to the referring judge—to "a series of alterations concerning not only the structure of the central nervous system [...] but also the sensory profile, generating a distorted view of reality and conditioning the subject’s psychic state, rendering him most often incapable of rational self-determination.”

However, such an interpretation would conflict "with the prerequisite of chronic intoxication in the terms intended by the 1930 legislator, only conceivable when abuse has resulted in ‘permanent psychic alterations.’” In fact, it would create a "dystonia and inconsistency with the system,” oriented towards recognizing the possibility of excluding or diminishing imputability only in the presence of a condition of "true stability of toxic phenomena, which persist even after the elimination of the substances from the body and which are not absent even in intervals of abstinence.”

Given this, in the referring judge’s opinion, the only way to reconcile the contested provision with constitutional principles would be the "provision of a chronicity of intoxication anchored not to a condition of infirmity, illness, or disorder, with permanent or irreversible effects, but to a chronicity of use, different from habitual use and referring to that stage of the process of drug addiction in which the peculiar effect of addiction is produced, identifiable based on the symptomatology proposed by DSM-5 and substantially characterized by a limitation of the will.” This would allow "the concept of chronic intoxication from narcotic substances to be brought back within the scope of determinacy and respect for the principle of legality,” in conformity, moreover, with what is provided by the most recent reform drafts of the rules on imputability.

1.5.– Finally, the referring judge—after citing the jurisprudence of this Court on its power to identify the most suitable ruling for the *reductio ad legitimatem* of the contested provision (judgment no. 221 of 2023 is cited)—suggests, as a "constitutionally adequate solution” (judgment no. 40 of 2019 is cited), "an interpretative decision of the concept of chronic intoxication” under Article 95 of the Penal Code, "leaving open the possibility of an organic reconsideration of the matter by the legislator.”

In the alternative, the referring judge hopes for "an additive intervention, which allows recourse to the ascertainment of the causes for the exclusion of imputability, pursuant to Articles 88 and 89 [Penal Code], also [in] hypotheses other than chronic intoxication, where a condition classifiable under the category of dependence disorders or those related to the use of psychotropic substances and not associated with infirmity or other serious personality disorders is present.”

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney’s Office, requesting that the questions be declared manifestly inadmissible or, in any event, manifestly unfounded.

2.1.– The manifest inadmissibility would stem, first of all, from the "lack of relevance resulting from the erroneous normative reconstruction of the factual situation.”

In this regard, the Attorney’s Office maintains that the referring judge, based on the description he himself provided of the accused’s psychic conditions—which are characterized by "psychotic symptomatology characterized by persecutory ideations, auditory misperceptions, and behavioral discontrol”—could well, based on the jurisprudence of the United Chambers (Cass., no. 9163 of 2005), apply Article 95 of the Penal Code and consequently recognize the exclusion or significant reduction of his capacity to understand or will pursuant to Articles 88 and 89 of the Penal Code. Thus, the issues raised would be merely hypothetical, and in any case not relevant for the decision of the proceedings *a quo*.

If, instead, the judge deemed it appropriate to adhere to the assessment of the second expert, who excluded pathological manifestations capable of excluding or greatly reducing the accused’s capacity to understand or will, the possibility of applying Article 95 of the Penal Code would be fundamentally lacking, even if the raised issues were accepted by this Court: thus confirming—even in this eventuality—their inadmissibility due to irrelevance.

In the Attorney’s opinion, moreover, there is a lack of reasoning regarding the violation of Article 111 of the Constitution, although invoked in the operative part; resulting in the inadmissibility of the related question.

2.2.– On the merits, the remaining questions would in any case be manifestly unfounded, substantially for the same reasons already articulated by this Court in judgment no. 114 of 1998, with particular reference to the statement—contained therein—that the scientific data underlying the concept of chronic intoxication are not incontrovertibly erroneous, nor do they reach "such a level of indeterminacy as to in no way allow for a rational interpretation and application by the judge.”

In any case, the criminal judge is not precluded, based on the principles outlined in judgment Cass., no. 9163 of 2005, from assessing the capacity to understand and will of the subject pursuant to Articles 88 and 89 of the Penal Code "even outside the strict occurrence of a state of chronic intoxication from narcotic substances and the related organic pathology arising therefrom.”

Considered in Law

3.– With the order indicated in the heading, the Judge for Preliminary Hearings of the Court of Bergamo raised, with reference to Articles 3, 27, third paragraph, and 111 of the Constitution, questions of constitutional legitimacy of Article 95 of the Penal Code, "interpreted as requiring, for the purposes of ‘chronic intoxication,’ the existence of a condition of infirmity, illness, or disorder, with permanent or irreversible effects, and not a chronicity of use.”

In the alternative, the referring judge raised questions of constitutional legitimacy regarding the same provision, with reference to the aforementioned parameters, "insofar as it limits the application of the provisions of Articles 88 and 89 [Penal Code] to cases of chronic intoxication only, for acts committed in the presence of a condition classifiable under the category of dependence disorders or those related to the use of psychotropic substances and not associated with infirmity or other serious personality disorders.”

3.1.– The subject of the doubts regarding constitutional legitimacy is Article 95 of the Penal Code, as interpreted by living law.

This provision is part of the overall regulation dedicated by the current Penal Code to the imputability of a subject who commits a criminal act under the influence of narcotic substances.

As is known, Articles 88 and 89 of the Penal Code generally establish—in application of the principle expressed in Article 85 of the Penal Code ("No one may be punished for an act foreseen by the law as a crime if, at the time he committed it, he was not imputable. He is imputable who has the capacity to understand and will”)—respectively, non-imputability or diminished imputability for those who, "due to infirmity,” at the time of committing the act, were "in such a state of mind as to exclude the capacity to understand or will” (Art. 88), or "in such a state of mind as to greatly diminish, without excluding it, the capacity to understand or will” (Art. 89).

Articles 91 to 95 of the Penal Code, dedicated to the imputability of those who committed the act while intoxicated by alcohol or narcotic substances, clearly derogate from these general rules. The general criterion followed by the 1930 Penal Code is that, where intoxication is attributable to a voluntary or negligent choice by the subject, their state of incapacity—or diminished capacity—to understand or will at the time of the commission of the criminal act does not exclude or diminish their imputability; an aggravation of the penalty is even provided for in the case where intoxication is premeditated to commit a crime or is habitual (Articles 92 and 94). A concrete assessment of the subject’s capacity to will must only be carried out in the case of intoxication resulting from fortuitous event or force majeure (Articles 91 and 93), or in the case—which is relevant here—of "chronic intoxication” from alcoholic substances or narcotics (Article 95).

More specifically, Article 95 of the Penal Code provides that "[f]or acts committed while under chronic intoxication produced by alcohol or narcotic substances, the provisions of Articles 88 and 89 shall apply.” Therefore, in the case of chronic intoxication, the judge is called upon to verify, on a case-by-case basis, whether the subject lacked the capacity to understand or will, or whether this capacity was greatly diminished, having to apply in these cases the regulation provided for by Articles 88 (exclusion of imputability) and 89 (reduction of the penalty), respectively. In the case, however, of "habitual” intoxication (but not chronic), such a verification will be precluded, and the judge will in any case be required to consider the perpetrator imputable, applying an aggravated penalty to him.

3.2.– Now, the referring judge—while aware that analogous issues have already been held to be unfounded by judgment no. 114 of 1998, which will be discussed further below (infra, 5)—considers the interpretation, which he deems unduly restrictive, applied by the Court of Cassation to the requirement of chronic intoxication from narcotic substances, the ascertainment of which conditions the judge’s possibility to ascertain the accused’s capacity to understand and will at the time of the act, to be of doubtful compatibility with a series of constitutional parameters. Based on this interpretation (on which more below, 7.3.), the condition in question exists only in the presence of psychic alterations produced by the prior habitual use of narcotics, but which have now become permanent, i.e., existing stably beyond the phase of acute intoxication.

In summary, according to the referring judge, the regulation of Article 95 of the Penal Code, as interpreted by living law:

– would result in an unreasonably worse treatment for narcotic substance users compared to that reserved for perpetrators with mental infirmity under Articles 88 and 89 of the Penal Code. The latter provisions have been subject to an extensive interpretation by judgment Cass., no. 9163 of 2005, so as to include among psychic infirmities potentially affecting imputability also personality disorders of such substance, intensity, relevance, and seriousness as to exclude or greatly diminish the capacity to understand or will of the agent at the time of the act (point 15.0 of the Grounds of the Decision), whereas such disorders currently cannot be considered capable of constituting "chronic intoxication” pursuant to Article 95 of the Penal Code, resulting in a violation of Article 3 of the Constitution;

– would intrinsically be unreasonable as it is now anachronistic in light of the evolution of psychiatric sciences, which tend to consider substance dependence not as an illness, much less an irreversible illness, but as a "disorder incorporated in a social context,” which requires care measures rather than punitive ones, resulting in a violation, under a different profile, of Article 3 of the Constitution itself;

– would produce an unreasonable equivalence of treatment reserved for the drug-addicted perpetrator compared to that provided for those who have abused alcohol for a long time and have effectively developed, as a consequence of the abuse, irreversible psychoses directly induced by alcohol. Such pathologies, however, are not attested by psychiatric and toxicological science as possible consequences of prolonged substance abuse, which moreover produces very different effects according to the type of substance, resulting in a violation, again, of Article 3 of the Constitution, as well as Article 111 of the Constitution, under the profile of the impossibility of adequately justifying the existence or non-existence of a state of chronic intoxication from narcotic substances;

– would finally violate the principles of personality, culpability, and the rehabilitative purpose of penalties, by preventing the judge from dispensing with the application of a penalty—and from applying, if necessary, a security measure in its place—even though the subject lacked the capacity to understand and will at the time of the act and could not be blamed for the state of psychic anomaly in which he found himself; nor from applying a reduction of the penalty, if appropriate, together with a security measure, when his capacity at the time of the act was significantly diminished and—again—he could not be blamed for the conditions in which he found himself, resulting in a violation of Article 27, first and third paragraphs, of the Constitution.

4.– The State Attorney’s Office raised two objections of inadmissibility.

4.1.– Firstly, the relevance of the questions is lacking, as the resolution of the constitutional legitimacy doubts raised is not necessary for the decision of the proceedings *a quo*. In fact, if the judge were to adhere to the assessments of the first expert, he could already apply Article 95 of the Penal Code and recognize the accused—judged to be affected by "psychotic symptomatology characterized by persecutory ideations, auditory misperceptions, and behavioral discontrol”—as totally or partially incapable of understanding or will pursuant to Articles 88 and 89 of the Penal Code. If, instead, the referring judge deemed it appropriate to adhere to the conclusions of the second expert, who excluded pathological manifestations capable of excluding or greatly reducing the accused’s capacity to understand or will, the possibility of applying Articles 88 and 89 of the Penal Code would be fundamentally excluded, even if the raised issues were accepted by this Court.

The objection is not founded.

In fact, the referring judge explains, with ample and detailed reasoning, that he cannot proceed to the concrete assessment of the accused’s capacity to understand or will pursuant to Articles 88 and 89 of the Penal Code, despite the presence of a clinical condition "apparently capable of affecting” these capacities. The consolidated interpretation, by the jurisprudence of the Court of Cassation, of the requirement of chronic intoxication under Article 95 of the Penal Code would preclude any relevance of psychic anomalies such as those from which the accused is allegedly suffering regarding imputability. Only an intervention by this Court, in the senses hoped for by the referring judge in the main or alternative plea, could therefore—in his perspective—remove this preclusion, allowing him to assess in concrete terms the capacity to understand and will pursuant to Articles 88 and 89 of the Penal Code. This is sufficient for the relevance of the questions, according to the usual standard of non-implausibility of the reasoning provided by the judge in the main proceedings (ex multis, most recently, judgments no. 129 of 2025, point 2 of the Considered in Law, and no. 88 of 2025, point 2.2.3. of the Considered in Law), leaving the evaluation of the consensus of this perspective to the merits phase.

4.2.– Secondly, the Attorney’s Office objects to a lack of reasoning regarding the parameter under Article 111 of the Constitution, which is invoked only in the operative part.

This objection is, this time, manifestly unfounded, in view of the concise but precise reasoning of the referring judge, which has been set out above, 1.3.3.

5.– Before addressing the merits of the issues, it is appropriate to recall immediately, as the referring order does, that issues largely analogous to the present ones were declared unfounded by judgment no. 114 of 1998.

5.1.– On that occasion, the referring judge questioned the constitutional legitimacy of Articles 94 and 95 of the Penal Code "on the grounds of their unreasonableness and on the connected ground of the violation of Article 111 [Constitution] due to the impossibility of reasoning a judicial decision that must be based on the impossible distinction between the two factual situations” (point 2 of the Considered in Law). According to the referring order’s perspective, the distinction between habitual and chronic intoxication made by jurisprudence was to be considered lacking in scientific support, due—in particular—to the unreliability of the prognosis of irreversibility that should characterize chronic intoxication.

As anticipated, this Court held the issues to be unfounded, reasoning that it could not affirm that the data on which the contested provisions are based were "incontrovertibly erroneous or reached such a level of indeterminacy as to in no way allow for a rational interpretation and application by the judge” (point 4 of the Considered in Law).

It is true, the ruling continued, that psychiatric and forensic medical doctrine does not offer a solid basis for the contested distinction, which is also widely discussed by "the most recent criminal legal doctrine,” which criticizes in particular the equalization imposed by that regulation between the effects of alcoholism and those of drug addiction. Also controversial, it was observed, is "the relationship linking non-imputability and semi-imputability for chronic intoxication from alcohol and narcotic substances, respectively, to total and partial insanity, with some perceiving a full identification of chronic intoxication with the latter categories [...], while others speak of different forms of excluded or diminished imputability [...] for which the law merely provides for the same legal treatment.” Furthermore, the judgment noted that the adequacy of the requirements of permanence and irreversibility for the identification of the state of chronic intoxication was uncertain within forensic medical doctrine (point 5 of the Considered in Law).

Nevertheless, this Court concluded by excluding the character of manifest unreasonableness of the regulation hypothesized by the referring judge, taking note of the then-constant orientation of criminal jurisprudence, which recognized chronic intoxication in the presence of "a non-transient alteration of the subject’s biochemical balance such as to determine a true psychophysical pathological state” and therefore "a corresponding and non-transient alteration of the intellectual and volitional processes.” With this, the judgment emphasized, the assessment of the imputability of the drug addict was made to "revolve in any case around a concept of ‘infirmity’ necessarily attributable, on a gnoseological level, to the changing contributions of clinical experience,” thus overcoming the risks of contradiction between science and norm on which the referring judge’s criticisms were based (point 6 of the Considered in Law).

Moreover, the ruling stressed that Articles 94 and 95 of the Penal Code are inserted into an organic and coherent normative system, "inspired by general prevention aims characterized by great rigor,” the cornerstones of which—represented by Articles 92 and 93 of the Penal Code—had already passed the scrutiny of this Court (judgment no. 33 of 1970).

On that occasion, it was nevertheless deemed appropriate, in conclusion, to reaffirm "the superior value of the principle of culpability,” considered as the criterion that "must allow for distinguishing [...] acute intoxication from chronic intoxication: the former being culpable, while allowing space for all recovery treatments and other measures deemed adequate in terms of application and execution of penalties; the latter being blameless, or less blameworthy” (point 8 of the Considered in Law). And always in the name of the principle of culpability, the ruling continued, the judge must resolve the problems that arise in the concrete application of Article 95 of the Penal Code, "applying, in case of doubt, precisely the rules of judgment expressly established in paragraphs 2 and 3 [...] of Article 530” of the Code of Criminal Procedure (point 9 of the Considered in Law), thus opting for the ruling most favorable to the accused if doubt remains as to the concrete configuration of chronic intoxication in the case.

5.2.– The current issues formally have a different objective, aiming not at the *tout court* ablation of Article 95 of the Penal Code, but—alternatively—at modifying its interpretation consolidated in the jurisprudence of the Court of Cassation, so as to include within the concept of "chronic intoxication” those disorders, not necessarily irreversible, determined by prolonged substance abuse and potentially affecting the subject’s capacity to understand or will; or to supplement the provision through an additive judgment that extends the same regulation already provided for chronic intoxication to those same disorders. Both remedies—one sought in the main plea, the other in the alternative—would in any case serve to allow the judge in these cases to assess, in the concrete case, whether the accused committed the act in a state of capacity to understand and will: and consequently to acquit him in case of a negative finding, or to reduce the penalty, if this capacity was found to be greatly diminished at the time of the act.

However, the arguments of the referring judge largely coincide with those already presented in the referring order that gave rise to judgment no. 114 of 1998. The current order thus essentially invites this Court to fundamentally reconsider the aforementioned precedent: which was not possible to do with order no. 250 of 2019, in which a similar invitation from the referring judge was not accepted due to the inadmissibility defects afflicting the initiating act.

Such a reconsideration appears, today, certainly appropriate. If it is true, in fact, that the tendency to respect one’s precedents—together with the coherence of the interpretation with the text of the norms interpreted and the persuasiveness of the reasoning—is for this Court "an essential condition for the authority of [its] decisions, ensuring that the criteria used for judgment remain at least relatively stable over time, and do not constantly change in relation to the variable composition” of the Bench, it is also true that there may well be "reasons of particular cogency that render the previously adopted solutions no longer sustainable”: such as—as far as relevant here—the subsequent inconciliability of the precedent with the changed systematic context, also due to new jurisprudential orientations or, in any case, the "supervening of circumstances, factual or normative in nature, not considered previously” (judgment no. 203 of 2024, point 4.5. of the Considered in Law; in similar terms, judgments no. 2 of 2026, point 9 of the Considered in Law, no. 202 of 2025, point 4 of the Considered in Law, no. 125 of 2025, point 6 of the Considered in Law, and no. 24 of 2025, point 3 of the Considered in Law; order no. 219 of 2025).

The referring judge relies, in particular, on the new fact represented by the often-cited judgment Cass., no. 9163 of 2005. This judgment has, in fact, extended the traditional notion of psychic "infirmity” relevant for the purposes of the general regulation on imputability under Articles 88 and 89 of the Penal Code, to include also "serious personality disorders, provided that the judge ascertains their seriousness and intensity, such as to exclude or greatly diminish the capacity to understand or will, and the etiological link with the specific criminal action” (point 17.0 of the Grounds of the Decision). The jurisprudential evolution thus determined would create, according to the referring judge, a significant discrepancy with the traditional interpretation of the requirement of chronic intoxication: an interpretation that deserves, in his opinion, to be declared constitutionally illegitimate by this Court, so as to allow the criminal judge to assess in concrete terms the capacity of the accused to understand and will in the presence of dependence disorders that, by nature and seriousness, would be analogous to those currently generally relevant for the purposes of Articles 88 and 89 of the Penal Code.

Moreover, judgment no. 114 of 1998 itself, while concluding that the issues were unfounded, had emphasized the difficulties of forensic medical doctrine in identifying a pathology corresponding to the codistic notion of chronic intoxication—particularly with regard to the effects of narcotic substance dependence—with respect to which even at that time a prognosis in terms of "permanence” and "irreversibility” appeared problematic.

Finally, and above all, the current referring order clearly presents this Court with the question, never addressed on the merits until now, regarding the compatibility of the regulation under Article 95 of the Penal Code with the principle of culpability: a principle that was only touched upon in the reasoning structure of the previous judgment no. 114 of 1998.

6.– Despite a comprehensive reconsideration of the topic, this Court nevertheless deems it necessary to conclude that all the complaints raised by the referring judge are unfounded.

7.– It is appropriate to begin precisely with the complaint regarding the violation of the principles of personality, culpability, and the rehabilitative purpose of penalties that results from the living law formed on Article 95 of the Penal Code.

7.1.– The principle invoked here is, in particular, that of culpability, which the jurisprudence of this Court—starting from judgment no. 364 of 1988 (point 9 of the Considered in Law)—derives from a systematic reading of the first and third paragraphs of Article 27 of the Constitution, which enunciate, respectively, the principles of the personality of criminal liability and the rehabilitative function of penalties.

Judgment no. 364 of 1988 emphasized that, beyond any doctrinal controversy on the precise content of culpability as a "dogmatic category,” culpability as a "constitutional principle” constitutes "a limit to the discretion of ordinary legislation in criminalizing penalizable facts,” relating to the identification of "the minimum subjective requirements for imputation without which the fact cannot legitimately be subjected to a penalty” (point 8 of the Considered in Law). Minimum requirements that the same judgment no. 364 of 1988 summarizes as the "possibility ([...] essential for the judgment of criminal liability) of directing a ‘reproach’ towards the author for the commission of the illicit act” (point 13 of the Considered in Law), also emphasizing "the constitutional illegitimacy of punishing acts that do not prove to be an expression of conscious, blameworthy contrast with (or indifference to) the values of coexistence, expressed by criminal norms” (point 14 of the Considered in Law, emphasis added).

Almost twenty years after that first ruling, these principles were reiterated with particular incisiveness by judgment no. 322 of 2007, where it is emphasized that the principle of culpability aims to "guarantee free choices of action to associates (judgment no. 364 of 1988), based on an anticipatory evaluation (‘calculability’) of the legal-criminal consequences of one’s conduct; ‘calculability’ which would cease if events extraneous to the agent’s sphere of conscious control were attributed to him” (point 2.3. of the Considered in Law, emphasis added).

Based on these principles—and regardless, also in this case, of the *vexata quaestio* concerning the dogmatic placement of imputability in the theory of crime, which is generally resolved by current prevailing doctrine as an inclusion in the "dogmatic category” of culpability—the existence of the agent’s capacity to understand and will certainly constitutes an essential condition for him to be blamed for the committed act, and therefore to be punished for that act in conformity with the "constitutional principle” of culpability (as stated by the United Criminal Chambers themselves in Cass., no. 9163 of 2005, point 4.4. of the Grounds of the Decision: "the personalistic configuration of liability [...] requires that it be rooted in the material commission of the act and in the concrete blameworthiness thereof”).

In the absence of the agent’s capacity to realize the social meaning and consequences of their actions, or the capacity to self-determine freely by governing their impulses, the very possibility of conscious control over their actions that legitimizes the imposition of a penalty against them would radically be lacking; and only the possibility of applying a security measure against them would remain, aimed at containing their social dangerousness and, at the same time, treating the pathologies or disorders from which they suffer (on this dual purpose of security measures, judgments no. 22 of 2022, point 5.2. of the Considered in Law, no. 197 of 2021, point 4 of the Considered in Law, and no. 73 of 2020, point 4.4. of the Considered in Law).

More recently, as the referring judge recalls, this Court has also had the opportunity to specify that the presence of significant personality pathologies or disorders capable of considerably diminishing the agent’s capacity to understand or will entails a lighter subjective reproach for the commission of the crime; and that in such a case the principle of proportionality of the penalty "generally requires [...] that a lower penalty correspond to the lesser degree of subjective blameworthiness than that which would be applicable for the same objective disvalue of the act, ‘so as to also ensure that the penalty appears a response—besides being not disproportionate—as individualized as possible, and therefore calibrated to the situation of the individual convicted, in implementation of the constitutional mandate of ‘personality’ of criminal liability under Article 27, first paragraph, of the Constitution’” (judgment no. 222 of 2018) (judgment no. 73 of 2020, point 4.2. of the Considered in Law).

7.2.– The general regulation established by the Penal Code regarding imputability is, *ante litteram*, inspired by these principles, conditioning the application of the penalty to the verification of the agent’s capacity to understand and will at the time of the act (Art. 85 of the Penal Code), and consequently to the absence of infirmities capable of excluding or greatly diminishing this capacity.

With respect to this general regulation, the provisions established by the Code concerning the imputability of the consumer of alcoholic and, as relevant here, narcotic substances are markedly special, being inspired by the general criterion according to which the agent’s capacity to understand and will must be determined not with reference to the time of the commission of the crime, but to the prior time when the subject placed himself—voluntarily or negligently—in the state of intoxication in the presence of which he would then have committed the act constituting the crime.

The historical legislator’s intention was, in fact, to provide for the anticipation of the verification of the capacity to understand and will to the time of the conduct causing the (subsequent) state of incapacity for the drug-using perpetrator.

This emerges with particular clarity from the preparatory works of the current Penal Code, from which it is learned that the reform intended to resort to the principle of *actio libera in causa*, which the last paragraph of Article 48 of the Zanardelli Code of 1889 was already inspired by, which excluded the reduction of the penalty for crimes committed while drunk, if this was procured for the purpose of facilitating the commission of the crime or preparing an excuse. The new Code essentially aimed to extend this principle "to all hypotheses in which the subject has placed himself, even negligently, in a state of incapacity to understand or will. In this way, the reform adopts the concept that it is legitimate to trace back to a moment prior to the act to determine whether the subject is imputable, when he finds himself, at the time of the act, in a state of incapacity due to causes not due to fortuitous event or force majeure” ("Preparatory Works of the Penal Code and the Code of Criminal Procedure,” 1928-1930, Volume V, Part III, Penal Code, Title VI, paragraph 101).

Consistent with this criterion, then, appears the exclusion of the operability of the special rules and the correlative return to the general rules for the hypothesis of "accidental” intoxication (paragraph 103)—that is, resulting—precisely—from fortuitous event or force majeure.

And consistent with the criterion adopted by the legislator is also the hypothesis, which is relevant here, of "chronic” intoxication: a hypothesis that the report on the draft carefully distinguishes from that of "acute” intoxication, the latter being attributable to a (voluntary or otherwise negligent) choice of the subject and characterized by "manifestations directly and temporarily brought about, by the disturbing action of the poisons, on the functions, during their biochemical passage through the organism.” On the contrary, chronic intoxication is to be understood—the report continues—as referring to the "alterations, more or less stable, which are partly effects of repeated and prolonged contact with the toxic substance, and partly due to the repercussion that each damaged organ can exert on the rest of the organism,” from which result "very serious nervous and psychic disorders which, even when not permanent, often arise without the ingestion of the poisons that were their distant cause” (paragraph 105).

Thus, the consideration of "chronic intoxication” as any other mental infirmity, subject to the general rules of Articles 88 and 89 of the Penal Code, appeared entirely natural at this point. So much so that, significantly, the Keeper of the Seals himself, in the report to the King on the final text published the following year, attributed to the provision the "value of authentic interpretation,” which found its justification only in the opportunity to emphasize with particular clarity the distinction between chronic and acute intoxication ("Report and Royal Decree of October 19, 1930, no. 1398 - Approval of the final text of the Penal Code Rome,” 1930, paragraph 58).

In both the hypothesis of accidental intoxication and that of chronic intoxication, the Keeper of the Seals therefore considered the imposition of a penalty untenable, precisely due to the impossibility of rooting in conduct reasonably close to the criminal act any reproach for having caused the state of incapacity in the presence of which the act was committed.

7.3.– In consistency with these (explicit) indications of the historical legislator, the constant jurisprudence of the Court of Cassation identifies chronic intoxication in that condition characterized by "permanent pathological alterations,” i.e., those that—although causally linked to the habitual abuse of drugs— "persist regardless of the renewal of an action strictly linked to the consumption of narcotic substances, such as to make it indisputable that we are dealing with a true mental illness” (Fourth Criminal Section, judgment of October 30-November 20, 2024, no. 42486; in the same sense, Sixth Criminal Section, judgments of May 30-June 19, 2023, no. 26478; Sixth Criminal Section, judgment of May 18-July 11, 2022, no. 26617; similarly, Third Criminal Section, judgment of January 25-April 6, 2021, no. 12949: "pathological condition of a chronic nature, i.e., long-term, [...] with symptoms that do not resolve over time and do not improve”).

Beyond the ambivalent reference to the requirement (to which we will return below, 9) of "impossibility of cure,” which appears in some rulings (e.g., Cass., no. 42486 of 2024, no. 26478 of 2023, and no. 26617 of 2022), but not in others (e.g., Cass., no. 12949 of 2021; Court of Cassation, Fourth Criminal Section, judgment of March 14-April 20, 2017, no. 19035), the constant element of these formulations is the emphasis on the presence of psychic anomalies no longer dependent on recent substance consumption, and whose concrete impact on the capacity to understand or will (and consequently on imputability) may—at this point—be assessed on a case-by-case basis by the judge pursuant to the combined provisions of Articles 95, 88, and 89 of the Penal Code.

7.4.– Precisely against this interpretation are leveled the criticisms of the referring judge. In order to avoid, among other things, a violation of the principle of culpability, it would be necessary, in his opinion, to extend by interpretation the concept of chronic intoxication to include "dependence disorders” from narcotic substances, as classified by DSM-5-TR (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision)—or, if necessary, to supplement, through an additive judgment of this Court, these disorders to the "traditional” chronic intoxication.

In this regard, it should be noted that the DSM-5-TR distinguishes between the alterations caused immediately by substance consumption (the so-called "Substance-Induced Disorders,” according to the terminology of the manual indicated), attributable to a picture of "acute” intoxication, from "Substance Use Disorders,” which are instead diagnosable based on the finding of a range of behavioral anomalies that may appear, to a greater or lesser extent, in those who habitually consume narcotic substances.

These disorders, cataloged by DSM-5-TR in a single section generically dedicated to "Substance-related Disorders” (also involving substances other than alcohol and narcotics, such as caffeine and tobacco), are diagnosable based on a series of indicators: the impairment of the capacity to control substance use (criteria 1-4)—and particularly the phenomenon of "craving,” understood as an intense or irresistible desire for the substance that can manifest at any time—; the impairment of the individual’s social relationships (criteria 5-7); substance use in risky situations (criteria 8-9); the need for markedly increased doses of the substance to achieve the desired effect or a markedly reduced effect when consuming the usual dose (criterion 10); and, finally, the withdrawal syndrome, caused by the decline in the concentration of the substance in the blood or tissues in an individual who has maintained heavy and prolonged use of the substance (criterion 11).

The referring judge thus believes that a correct application of the constitutional principle of culpability requires including substance use disorders in the concept of chronic intoxication, in order to allow the judge to assess the concrete impact of these disorders, as revealed by the indices listed above, on the subject’s capacity to understand or will at the time of the act.

7.5.– This Court, however, does not share this perspective.

In fact, there is no doubt that the constitutional principle of culpability "cannot be ‘sacrificed’ by ordinary legislation in the name of a more effective criminal protection of other values, even if they are also of constitutional rank,” since "[t]he fundamental principles of guarantee in criminal matters [...] are characterized as such insofar as they ‘resist’ any appeal in the opposite direction [...]. Punishing in the absence of culpability, in order to dissuade associates from engaging in prohibited conduct (negative general prevention) or to ‘neutralize’ the offender (negative special prevention), would imply, in fact, an instrumentalization of the human being for contingent criminal policy objectives (judgment no. 364 of 1988), contrary to the personalistic principle affirmed by Article 2 of the Constitution” (judgment no. 322 of 2007, point 2.3. of the Considered in Law, emphasis added).

But what this Court is required in any case to preserve is the minimum, non-derogable content of the principle, traceable to the requirement that the imposition of a penalty be based on a personal reproach to the agent, for having determined himself to act in contrast with the criminal law despite having the possibility to act otherwise. The more precise declination of this principle in the various regulations governing the imputation of the criminal act to its author (from the rules on the subjective element, to those on error regarding unlawfulness, and again to those concerning the so-called excusatory circumstances) remains reserved, once this minimum core is preserved, to the discretion of the legislator: to whom falls, in the first instance, the delicate task of giving effect to the constitutional principles in criminal matters (also understood as "guidelines for criminal policy”: judgment no. 139 of 2025, point 9.3. of the Considered in Law), within the framework of sustainable balances with the equally essential duty to protect all members of society, starting with the most vulnerable, from the criminal conduct of others.

In truth, much criticism has been leveled by criminal legal doctrine, as judgment no. 114 of 1998 already observed, against the solution adopted by the Rocco Code for the problem of the imputability of the alcoholic and the drug addict; and different solutions can certainly be imagined, as demonstrated by the proposals formulated in the various draft reforms of the Penal Code that have followed one another over the last thirty years, some of which are inspired by the regulations in force in legal systems similar to the Italian one. However, the choice made in 1930, never modified by the legislator in the almost one hundred years that have since passed, was to create a special regime for the assessment of the imputability of the alcoholic and drug-addicted perpetrator, derogatory to the general criterion under Article 85 of the Penal Code, and centered—as observed—on the anticipation of the reproach to a moment prior to that in which the criminally relevant conduct was carried out.

From this fundamental option of the legislator, criminal jurisprudence derives, in a completely plausible manner from the perspective of ordinary interpretative criteria, the irrelevance for the purposes of the judgment of imputability not only of the transient condition of incapacity linked to the phase of acute intoxication from narcotic substances (characterized by "Substance Use Disorders,” according to DSM-5-TR nomenclature), but also of the complex of disorders that DSM-5-TR classifies as "narcotic substance use disorders,” which frequently follow prolonged drug abuse and persist even after significant periods of abstinence from the substance. The eventual impact of these disorders on the author’s capacity to understand or will at the time of the commission of the act does not preclude the possibility of reasonably grounding the reproach, necessary to justify the imposition of the penalty by virtue of the constitutional principle of culpability, for not having undertaken, at a reasonably close prior moment to the criminal act, a serious detoxification process. A process, it is worth adding, that the legal system is obliged to concretely make available to the drug addict, particularly through the personalized therapeutic and socio-rehabilitative programs referred to in Article 122 of Presidential Decree no. 309 of October 9, 1990 (Consolidated Act on the discipline of narcotic and psychotropic substances, prevention, treatment, and rehabilitation of related drug addiction states).

8.– The referring judge also complains of an unreasonable discrimination created by the contested interpretation to the detriment of the drug addict compared to all other perpetrators with mental infirmity, for whom non-imputability or a reduction of imputability could be recognized based on the more flexible diagnostic criteria introduced by judgment Cass., no. 9163 of 2005.

In this case too, this Court is not persuaded by this perspective.

As observed a moment ago, the legislator’s choice was clear in designing a special, and more rigorous, regulation for the imputability of the drug addict (and the alcoholic) compared to that reserved for the generality of perpetrators. In particular, the choice not only to consider habitual drunkards and those "addicted” to the use of narcotics fully imputable, but even to provide for an aggravation of the penalty for them (Article 94 of the Penal Code), constitutes an evident obstacle to any interpretation aimed at recognizing the judge the possibility of excluding, or considering reduced, the imputability of the perpetrator simply because he presents disorders resulting from the repeated use of substances, which regularly appear associated precisely with the situation that the legislator deems deserving of a penalty aggravation.

The hermeneutic result reached by the jurisprudence of the Court of Cassation—imposed, it is repeated, by a systematic reading of Articles 94 and 95 of the Penal Code—does not create, in the opinion of this Court, an unreasonable disparity of treatment between "substance use” disorders and other personality disorders, which criminal jurisprudence—based moreover on an interpretation, consecrated by judgment Cass., no. 9163 of 2005, which encounters no similar obstacles in the text and ratio of the Penal Code—instead deems capable of determining the exclusion or reduction of the agent’s imputability. Putting aside, in fact, any discussion about the affinities and differences between the disorders arising from drug addiction and those caused by other dependencies (such as ludomania) on which the referring order focuses, it cannot be overlooked that the legal system as a whole currently provides for a set of special provisions for the perpetrator of a drug-related crime, which—while upholding his full imputability and consequent subjection to the penalty, by virtue of the provisions of the Penal Code—still take into account his peculiar situation of psychic fragility arising from the abuse of narcotic substances, modeling the penitentiary regime and the very precautionary measures applicable to him around the primary objective of motivating him to undertake therapeutic and socio-rehabilitative paths, based on an overall regulation more favorable than that reserved for the generality of other imputable perpetrators.

In this view, the provisions of Articles 89 to 96 of the Consolidated Drug Act deserve particular mention:

– Art. 89 provides that, as a rule, when the prerequisites for precautionary custody in prison for drug addicts or alcoholics who are undergoing (paragraph 1) or intend to undergo (paragraph 2) a therapeutic recovery program at public addiction services or an authorized private facility exist, the judge shall order house arrest in its place, if necessary at the facility itself;

– Art. 90 orders the suspension of the execution of prison sentences not exceeding six years (or four years, if related to crimes under Art. 4-bis of Law no. 354 of July 26, 1975, containing "Provisions on the penitentiary system and the execution of custodial and restrictive freedom measures) for a period of five years if it ascertains that the person has successfully undergone a similar therapeutic and socio-rehabilitative program, resulting in the extinguishment of the crime if the convict does not commit other non-culpable felonies punishable by imprisonment within that term (Art. 93);

– Art. 94 regulates special probation in particular cases for the convicted drug addict or alcoholic who is undergoing or intends to undergo a recovery program, when a sentence, even remaining, not exceeding six years must be served (or four years, if related to a crime under Art. 4-bis of the Penitentiary Regulation);

– Articles 95 and 96, finally, aim to ensure that, even in the event that the convicted drug addict must serve his sentence in prison, the institution must be suitable for carrying out therapeutic and socio-rehabilitative programs (Art. 95) and in any case must provide him with the necessary medical care and assistance for rehabilitation purposes (Art. 96).

From the entirety of these provisions, it emerges that the drug addict is generally considered a fully imputable subject and, as such, potentially subject to the application of a penalty (rather than a security measure); but at the same time, it is clear that the precautionary measures, and then the rules on the execution of the penalty applicable to him, are specifically calibrated to his peculiar situation, being strongly oriented towards a therapeutic and rehabilitative approach, which realistically acknowledges his situation as a person in need of care and assistance, in implementation of the duties of social solidarity (Art. 2 of the Constitution) and protection of health (Art. 32 of the Constitution) that rest on the legal system as a whole.

9.– Finally, the remaining constitutional legitimacy questions raised also appear unfounded, which can be addressed jointly here: the alleged anachronism of the notion of "chronic intoxication,” resulting in a violation of Article 3 of the Constitution; and the unreasonable equalization of the treatment reserved for the perpetrator of a drug-related crime compared to the perpetrator who has abused alcohol for a long time.

The central assumption of the referring judge is that the concept of "chronic intoxication” was constructed by the drafters of the 1930 Penal Code around the model of the chronic alcoholic and the pathologies habitually developed by him, which—like *delirium tremens*, expressly mentioned in the preparatory works (paragraph 105)—would constitute stable morbid manifestations, no longer attributable to new consumption conduct, and therefore worthy of being equated to true mental illnesses. Such a model, however, cannot be transferred, based on current scientific knowledge, to drug addictions, for which any evaluation in terms of irreversibility of the pathology induced by prolonged use of narcotic substances is—in particular—inadequate.

On this point, however, it should be noted that the requirement of "irreversibility,” or "impossibility of cure”—mentioned, indeed, by only part of the jurisprudence of the Court of Cassation (supra, 7.3.)—does not appear at all in the preparatory works, which instead speak, with reference to chronic intoxication, of "alterations, more or less stable,” as well as of "very serious nervous and psychic disorders which, even when not permanent, often arise without the ingestion of the poisons that were their distant cause” (paragraph 105 again, emphasis added).

This requirement is, therefore, the result of a restrictive interpretation of the concept of "chronic intoxication,” which likely does not correspond to the intention of the historical legislator and is dissonant with the current state of psychiatric and forensic medical knowledge: which are understandably reluctant to make prognoses of irreversibility regarding any pathology of a psychiatric nature, and even less so regarding dependencies as a whole. It is no coincidence that this alleged requirement is not mentioned in judgment no. 114 of 1998, which declared unfounded the constitutional illegitimacy complaints already raised against Article 95 of the Penal Code.

The logic of the requirement of "chronicity” is, in effect, entirely different. It covers all those (serious) psychic anomalies that should be found in the drug-addicted perpetrator even after long periods of abstinence from consumption; and this precisely because, as observed above, such anomalies (potentially affecting his capacity to understand or will) cannot in any way be blamed on him, as they are not attributable to any conscious and voluntary choice on his part. The "irreversible” nature of the anomalies is therefore irrelevant.

Understood in this way, the concept of "chronic intoxication” extends to all psychic pathologies, and in particular psychoses, characterized by phenomena of serious misperception of reality and frequently associated—within clinical pictures of "comorbidity” or "dual diagnosis”—with dependence on narcotic substances and "produced” by them in a broad sense: whether because they arose directly as a consequence of prolonged substance abuse and the organic alterations caused by it, or because they were already present in the subject and "unmasked” by such abuse. These are pathologies, all of them, additional and distinct from mere "substance use disorders” in the sense specified above, and whose concrete impact on the capacity to understand or will of the accused at the time of the act the judge can certainly assess, thanks to Article 95 of the Penal Code, pursuant to Articles 88 and 89 of the Penal Code. It remains, of course, the duty to assign autonomous relevance, directly pursuant to Articles 88 and 89 of the Penal Code, to those pathologies and psychic anomalies that should prove to be, based on the necessary technical assessments, entirely autonomous from substance dependence.

In this sense, the requirement of "chronic intoxication” is concretely ascertainable even in light of current scientific knowledge, with the consequent possibility for the judge to fulfill his obligation to provide adequate grounds for his decision pursuant to Article 111, sixth paragraph, of the Constitution. At the same time, the criterion for its ascertainment remains exactly the same to be used with reference to the alcoholic perpetrator, with the consequent unfoundedness also of the complaint regarding the unreasonable equalization of treatment formulated with reference to Article 3 of the Constitution.

10.– In conclusion: unless concurrent psychic anomalies emerge, in the sense specified above, the current Penal Code does not consider the perpetrator of a drug-related crime as a psychiatric patient to whom a security measure should be applied, but as a person responsible for his illicit conduct, as he is, in principle, responsible—first and foremost—for his own state of drug addiction.

At the same time, the legal system today recognizes his particular vulnerability arising from the undoubted conditioning caused by the state of drug addiction on his very freedom, encouraging him (even vigorously) to undertake rehabilitation paths, which the legal system itself undertakes concretely to make available to him, during the execution of the penalty and—even before—during the investigation and trial. In this way, the penal system realistically acknowledges his special need for help and solidarity with a view to overcoming his situation of dependence and—ultimately—to recovering his full freedom from dependence.

The appropriateness of the criminal policy balance thus reached by the legislator can naturally be debated: but this Court does not believe that it can be censured from the perspective—which is the only one relevant here—of compliance with the constitutional principles invoked.

for these reasons

THE CONSTITUTIONAL COURT

declares the questions of constitutional legitimacy of Article 95 of the Penal Code, raised, with reference to Articles 3, 27, third paragraph, and 111 of the Constitution, by the Judge for Preliminary Hearings of the Ordinary Court of Bergamo with the order indicated in the heading, to be unfounded.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 12, 2026.

Signed:

Giovanni AMOROSO, President

Francesco VIGANÒ, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on February 26, 2026

 

The anonymized version is textually compliant with the original