ORDER NO. 22
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, 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 constitutional legitimacy proceedings concerning Articles 282-ter, paragraphs 1 and 2, and 275-bis of the Code of Criminal Procedure, as amended by Article 12, paragraph 1, letters a) and d), of Law of November 24, 2023, n. 168 (Provisions for combating violence against women and domestic violence), brought forth by the Judge for Preliminary Investigations of the Ordinary Court of Bari, in the criminal proceedings against G. A. with order of July 23, 2024, registered under no. 172 of the register of orders of 2024 and published in the Official Gazette of the Republic no. 39, special first series, of the year 2024, the hearing for which was set for the deliberation in chambers on December 1, 2025.
Having seen the intervention act of the President of the Council of Ministers;
Having heard the Reporting Judge Antonella Sciarrone Alibrandi in the deliberation in chambers on December 2, 2025;
Deliberated in the deliberation in chambers on December 2, 2025.
Whereas, by order of July 23, 2024 (reg. ord. no. 172 of 2024), the Judge for Preliminary Investigations at the Ordinary Court of Bari raised questions of constitutional legitimacy of Articles 282-ter, paragraphs 1 and 2, and 275-bis of the Code of Criminal Procedure, as amended by Article 12, paragraph 1, letters a) and d), of Law of November 24, 2023, n. 168 (Provisions for combating violence against women and domestic violence), in reference to Articles 3, 13, and 117, first paragraph, of the Constitution, the latter in relation to Articles 2, 3, 7, and 8 of the European Convention on Human Rights;
Whereas the referring judge challenges the aforesaid provisions in the part in which they: a) mandate the automatic application of remote monitoring procedures, by electronic means or other technical tools, referred to in Article 275-bis of the Code of Criminal Procedure for the crime under Article 612-bis of the Penal Code; b) impose a minimum distance, "in any case not less than five hundred meters," from the injured party or the places frequented by them in the event of application of the precautionary measure of prohibition from approaching, referred to in Article 282-ter of the Code of Criminal Procedure, even where the suspect and the victim reside in the same building; c) provide for the mandatory application, even jointly, of more severe precautionary measures, even in the event of ascertained technical infeasibility of the monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure; d) establish the necessary verification, at the time of execution (of the precautionary measure) by notification of the order, of the technical feasibility of the monitoring procedures referred to in Article 275-bis of the Code of Criminal Procedure by the judicial police delegated for execution;
Whereas, according to the Judge for Preliminary Investigations of Bari Court, the challenged provisions impose automatic measures that violate Article 3 of the Constitution, primarily under the aspect of the principle of reasonableness, as they prevent the judge from any assessment regarding the adequacy and suitability of the application method of the precautionary measure in question in relation to the gravity of the offense, the personality of the suspect, and other specificities that may arise in the case submitted, as well as any margin of discretion on the application of a more severe precautionary measure in case of ascertained technical infeasibility of the electronic monitoring procedures;
Whereas, moreover, the same provisions are also deemed to violate the principle of equality, as they impose the same treatment and a single monitoring method in relation to situations that may not be analogous, with the possible further effect of restricting other fundamental rights of the suspect, such as the right to health, the right to schooling, and the right to worship, by precluding access to certain places (such as a pharmacy, hospital, carabinieri station, places of worship);
Whereas the reservation of jurisdiction under Article 13 of the Constitution is also deemed violated, as the judge, when adopting the measure restricting personal liberty, cannot provide any adequate justification supporting either the prescription of compliance with the minimum distance, not less than 500 meters, or the application of technical monitoring methods, or the adoption of other, even more severe, measures in case of verification of the technical infeasibility of the aforementioned electronic monitoring methods (which would also be contrary to the principle of minimal restriction of personal liberty), being bound to these prescriptions by the provisions in question;
Whereas, finally, the referring Judge for Preliminary Investigations finds an additional ground for unconstitutionality in the violation of Article 117, first paragraph, of the Constitution, in relation to Articles 2, 3, 7, and 8 of the ECHR, since the mandatory application of electronic monitoring devices pursuant to Article 275-bis of the Code of Criminal Procedure, when the precautionary measure of prohibition from approaching is imposed, leads this automatism, by making the implementation of the aforesaid measure impossible in cases—not infrequent in practice—of material unavailability of the technical personnel responsible for verifying the technical functionality conditions of the remote electronic monitoring device, to violate the procedural obligations—corresponding to the establishment of an effective and timely criminal proceeding within which personal precautionary measures must be adopted for the protection of the victim, which are immediately applicable—sanctioned by the European Court of Human Rights, judgment of March 2, 2017, T. against Italy;
Whereas, regarding the lower court proceedings, the referring judge states that the proceedings originate from the complaint filed by a married couple against their next-door neighbor—who resides in the apartment adjoining that of the complainants—for having committed a series of harassing and threatening acts against them, sufficient to cause the victims serious anxiety and fear and a well-founded apprehension for their safety and that of their children (including a minor), forcing them to alter their living habits;
Whereas, therefore, the personal coercive precautionary measure of prohibition from approaching the places frequented by the injured parties was applied against the suspect, with the prescription not to approach the same places and, in particular, the residences of close relatives other than those living with the victims, as well as the workplaces possibly frequented by them; with the obligation to maintain a distance of not less than 500 meters from these places; with the prohibition to communicate, by any means, including social networks, with the injured parties themselves and their close relatives; with the application of the special monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure, by electronic means and/or other technical tools only following the acquisition of the suspect's consent and after verification of the technical feasibility of the operation by the judicial police officers delegated for execution;
Whereas the referring judge further specifies that, in the same order, a more severe precautionary measure, namely the prohibition from residing in the Municipality of residence of the suspect, pursuant to Article 283 of the Code of Criminal Procedure, was ordered against the suspect in case of refusal of consent to the application of the monitoring methods referred to in Article 275-bis of the Code of Criminal Procedure or in case of ascertained technical infeasibility of the same monitoring methods;
Whereas, in order to avert the risk of application of the more severe precautionary measure pending the completion of the checks regarding the technical feasibility of the monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure, it was ordered that the prohibition from approaching measure be carried out even without an electronic tag;
Whereas the same referring judge also specified that, during the hearing for validation of the arrest, the suspect consented to the monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure and that, however, following that hearing, the defense counsel for the said suspect requested the revocation of the precautionary measure of prohibition from approaching or, alternatively, the revocation of the prescription relating to the application of the special monitoring methods pursuant to Article 275-bis of the Code of Criminal Procedure;
Whereas the Judge for Preliminary Investigations of Bari Court affirms that both requests were rejected by a measure dated July 17, 2024;
Whereas, in particular, precisely in consideration of the rejection of the request for revocation of the prescription relating to the application of the special monitoring methods pursuant to Article 275-bis of the Code of Criminal Procedure—as well as the application of the coercive precautionary measure pending the verification of the technical feasibility of the said monitoring methods by the judicial police delegated for execution, a verification which is stated not to have been yet carried out—the questions are deemed relevant in the lower court proceedings, registered for a habitual crime (under Article 612-bis of the Penal Code) with reference to conduct committed (also) in a period subsequent to the entry into force of Law no. 168 of 2023;
Whereas, if the raised questions were accepted, the judge could, on the one hand, modulate the prescriptions related to this precautionary measure in compliance with the proportionality standard, in light of the suspect's needs, including housing needs—as in the present case—prescribing a distance of less than 500 meters from the injured parties and the places frequented by them, and assessing the necessity or otherwise of applying the monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure; on the other hand, the judge could exercise their discretionary power also regarding the joint application of an additional precautionary measure, taking into account the nature, degree, and precautionary needs to be met in the specific case, in the event that the judicial police delegated for execution ascertains the technical infeasibility of the monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure;
Whereas the question raised in reference to Article 117, first paragraph, of the Constitution, in relation to Articles 2, 3, 7, and 8 of the ECHR, is also deemed relevant, since the circumstance of the impossibility of ascertaining the technical feasibility of the monitoring procedures would render the precautionary measure inapplicable, resulting in a violation of the duty incumbent upon public authorities to establish an effective and timely criminal proceeding, within which personal precautionary measures must be adopted for the protection of the victim, which are immediately applicable, as stated in the judgment of the ECtHR, T. against Italy, given the fact that the mandatory use of electronic monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure for compliance with the prohibition from approaching would render the latter inapplicable in cases of impossibility of verifying the technical functionality conditions of the remote electronic monitoring device;
Whereas, however, as preliminarily raised by the Attorney General of the State, intervening in the proceedings on behalf of and in defense of the President of the Council of Ministers, the referring judge does not provide adequate justification supporting the alleged relevance of the solution to the aforementioned doubts of constitutional legitimacy for the purposes of the lower court proceedings;
Whereas, in fact, the referring judge firstly recalls that against the suspect (for the crime under Article 612-bis of the Penal Code, charged as a habitual crime) the personal coercive precautionary measure of prohibition from approaching the places frequented by the injured parties, pursuant to Article 282-ter of the Code of Criminal Procedure, was applied, with the obligation to maintain a distance of not less than 500 meters, as well as with the application of the special monitoring procedures pursuant to Article 275-bis of the Code of Criminal Procedure by electronic means and/or other technical tools, "even in case of temporary unavailability" of the latter;
Whereas the same referring judge states that, during the hearing for validation of the arrest, the suspect consented to the electronic monitoring procedures but his defense requested the revocation of the precautionary measure of prohibition from approaching and, alternatively, the revocation of the prescription relating to the application of the special electronic monitoring methods;
Whereas, in the referring order, the Judge for Preliminary Investigations of Bari Court, after stating that both requests were rejected by a specific measure, declares that the rejection of the request for revocation of the prescription relating to the application of the monitoring methods pursuant to Article 275-bis of the Code of Criminal Procedure renders the questions raised relevant "within the proceedings," pending before the same judge, "registered for a habitual crime (Art. 612bis of the Penal Code), with conduct committed (also) in a period subsequent to the entry into force of Law of November 24, 2023, no. 168, within which precautionary measures were applied according to the procedural discipline modified by the recent legislative intervention";
Whereas, however, no justification is provided as to why, in the specific case, the referring judge—despite having rejected the request for revocation of both the precautionary measure and the prescription concerning the electronic monitoring methods of the same measure—far from having exhausted their judicial power, by applying the challenged legislation, with the consequent irrelevance of the raised questions, in line with the constant jurisprudence of this Court (most recently, order no. 41 of 2025)—finds themselves in a position to be able and willing to continue applying the same legislation;
Whereas, in fact, nothing is stated in the order regarding the referring judge's eventual intention—the implementation of which would be precluded by the challenged legislation—to modify the precautionary measure already adopted, by differently modulating its application methods, nor how;
Whereas, therefore, it is not deducible from the referring order whether and why the referring judge considers themselves able and willing to apply the challenged legislation in the specific case;
Whereas the review that this Court performs regarding the justification of relevance, although stopping at the threshold of its implausibility, "both as to the applicability of the norm in the main proceedings, and with respect to the possibility, or not, of concluding 'the latter independently of the solution to the question raised' (ex plurimis, judgment no. 192 of 2022)" (judgment no. 137 of 2025), nevertheless requires that an implausible justification be provided and that such justification, in this case, is affected by the indicated relevant argumentative deficiencies;
Whereas, therefore, such deficiencies determine the inadmissibility of the questions raised by the Judge for Preliminary Investigations of Bari Court due to lack of justification regarding relevance.
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the questions of constitutional legitimacy of Articles 282-ter, paragraphs 1 and 2, and 275-bis of the Code of Criminal Procedure, raised—in reference to Articles 3, 13, and 117, first paragraph, of the Constitution, the latter in relation to Articles 2, 3, 7, and 8 of the European Convention on Human Rights—by the Judge for Preliminary Investigations of the Ordinary Court of Bari with the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 2, 2025.
Signed:
Giovanni AMOROSO, President
Antonella SCIARRONE ALIBRANDI, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on March 3, 2026
The anonymized version is textually compliant with the original