JUDGMENT NO. 30

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 rendered the following

JUDGMENT

in the constitutional legitimacy review concerning Article 168-bis, fourth paragraph, of the Penal Code, initiated by the Ordinary Court of Florence, First Criminal Section, in sole membership, in the criminal proceeding against A. D.S. with an order dated October 28, 2024, registered under no. 229 of the register of orders for 2024 and published in the Official Gazette of the Republic no. 51, first special series, of the year 2024, the hearing of which was set for the deliberative session in chambers on December 1, 2025.

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

having heard in the deliberative session in chambers on December 2, 2025, the Reporting Judge Giovanni Pitruzzella;

deliberated in the deliberative session in chambers on December 2, 2025.

Having Considered in Fact

1.– By an order dated October 28, 2024, registered under no. 229 of the register of orders for 2024, the Ordinary Court of Florence, First Criminal Section, in sole membership, raised questions of constitutional legitimacy of Article 168-bis, fourth paragraph, of the Penal Code, with reference, in aggregate, to Articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, of the European Convention on Human Rights.

1.1.– Regarding relevance, the referring court states that it must decide on the request for suspension of proceedings with probation, filed by a defendant already admitted to the suspension for an offense of driving under the influence dating back to July 4, 2015.

The request should be declared inadmissible or in any case rejected, as the contested provision prohibits granting the suspension of proceedings with probation more than once.

1.2.– The referring judge, primarily, challenges the provision for violation of Articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, ECHR, "insofar as it provides for the prohibition of granting the suspension of proceedings with probation to the defendant a further time, even in the event that the proceeding in which the probation was already granted concluded with a judgment of acquittal”.

Subsidiarily, the provision is suspected of unconstitutionality for violation of Articles 3 and 27, third paragraph, of the Constitution, "insofar as it excludes that a further grant of probation may be permitted, even after three years have elapsed from the judgment of acquittal due to the successful completion of the probation”.

1.2.1.– Regarding the non-manifest groundlessness of the question raised primarily, the referring judge maintains that the "preclusion of access to an alternative procedure, such as a new suspension of proceedings with probation,” infringes the principle of the presumption of innocence, as it would be based on "a sort of presumption of guilt regarding the previous charge.”

The contested provision would result in less favorable treatment compared to the application of the sentence upon request of the parties, the penal decree, the compounding of the offense, the extinction of the offense due to reparative conduct, cases which do not include a similar prohibition.

Furthermore, the prohibition, in its absoluteness, would be unreasonable for an institution characterized by significant advantages both for the defendant, in terms of resocialization, and for the State, in terms of burden reduction and "saving of resources for the administration of justice,” and would be dissonant with the rehabilitative purposes.

1.2.2.– Alternatively, the referring judge challenges the same Article 168-bis, fourth paragraph, of the Penal Code, "insofar as it excludes that a new grant of suspension with probation may be permitted, even when more than three years have elapsed since the judgment of acquittal due to the successful completion of the probation issued in the proceeding in which the defendant was previously admitted to benefit from the institution.”

The prohibition on benefiting from probation even "after a significant lapse of time” would be unreasonable and would end up "disregarding the essential rehabilitative aspect” of the institution, based on a presumption of "ineffectiveness in rehabilitation and prevention.”

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

2.1.– As a preliminary matter, the questions would be inadmissible due to lack of relevance and the inappropriate formulation of the *petitum*, exceeding the issues under discussion in the main proceedings.

2.2.– The questions would not be founded in any case.

The prohibition of a second grant of suspension of proceedings with probation would not violate the presumption of innocence and is justified in light of the reward-based nature of the institution.

Moreover, the multiple reference points indicated by the referring judge are heterogeneous.

Having Considered in Law

3.– With the order indicated in the heading (reg. ord. no. 229 of 2024), the Court of Florence, First Criminal Section, in sole membership, challenges Article 168-bis, fourth paragraph, of the Penal Code, with reference, in aggregate, to Articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, of the ECHR.

3.1.– Primarily, the referring judge doubts the constitutional legitimacy of this provision "insofar as it provides for the prohibition of granting the suspension of proceedings with probation to the defendant a further time, even in the event that the proceeding in which the probation was already granted concluded with a judgment of acquittal,” with reference to Articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, ECHR.

The referring judge assumes that the "prohibition of a second grant of suspension with probation,” provided solely for the probation of adults and detached from any consideration of the nature, criminal or contraventional, of the offenses, the outcome, positive or negative, of the probation, the time distance between the various proceedings, the time of commission of the facts, conflicts with the presumption of innocence (Articles 27, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, ECHR).

The prohibition in question, in fact, "on the one hand, suggests a sort of presumption of guilt regarding the previous charge, even in the face of a judgment of acquittal due to the successful completion of the probation, and on the other hand, diminishes the rehabilitative scope of probation, as if it were merely yet another institution with a reward-based and burden-reducing connotation.”

The legislative choice would be conditioned by the "persistent suspicion as to the fact that the subject had nevertheless committed the alleged offense” and would be in contrast with the characteristics of the suspension of proceedings with probation, which does not involve any assessment of the merits of the accusation and is not relevant in an action for damages or disciplinary proceedings or for the purpose of applying ancillary sanctions and the regime of recidivism or habitual criminality.

A mechanism thus framed would present a "stigmatizing connotation” and would constitute a violation of the component not only procedural but also "supra-procedural” of the presumption of innocence, which aims to "protect the reputation of the person, especially against the risk that the latter is treated by the authorities as if they were guilty of the offense attributed to them and in relation to which they have been acquitted or have anyway benefited from an interruption of the proceedings.”

The prohibition would then prove unreasonable (Article 3 of the Constitution) and disharmonious with the principles established by Article 27, third paragraph, of the Constitution. The contested provision would indeed render futile the purposes of an institution "rich in positive features (both for the defendant, and for the legal system, and for the State-Administration)” and "deeply inspired by a rehabilitative purpose and characterized by excellent potential in this regard.”

The contested provision would also violate Article 3 of the Constitution under a separate aspect. It would create an arbitrary disparity of treatment compared to the application of the sentence upon request of the parties, the compounding of the offense, the penal decree, the extinction of the offense following reparative conduct. These facts, while not requiring the articulated and demanding path of probation and, in particular, "the reparation of the damage, the performance of work for the community, assistance by the social services, constant monitoring by the authorities,” do not include the prohibition now contested.

The referring judge also deems it unreasonable that the defendant can access the conditional suspension of the sentence, a benefit "which does not necessarily require compliance with prescriptions or the performance of public utility work,” but cannot benefit from the suspension of proceedings with probation, which is accompanied by a more substantial commitment.

3.2.– Alternatively, the Court raises a question of constitutional legitimacy regarding the same provision, "insofar as it excludes that probation may be granted a further time, even after three years have elapsed from the judgment of acquittal due to the successful completion of the probation issued in the proceeding in which the defendant was previously admitted to benefit from the institution.”

In this regard, the referring court specifically outlines the violation of Articles 3 and 27, third paragraph, of the Constitution.

A prohibition that remains, "even with the passing of a considerable period of time,” would prove unreasonable and out of sync with what is "the essential rehabilitative aspect” of probation. In this way, the legislator would presume "the ineffectiveness in rehabilitation and prevention of the institution, without time limits, thus fundamentally denying a possibility of improvement for the human person.” For the adult, just as for the minor, who can benefit from probation without limits, there would still be "scope for improvement in terms of resocialization.”

From the referring court's perspective, the constitutionally adequate solution to remove the violation would be found in the regulation of Article 58-quater of Law no. 354 of July 26, 1975 (Provisions on the Penitentiary System and the Execution of Custodial and Restrictive Measures), concerning the prohibition on granting penitentiary benefits and alternative measures to detention that affects a convicted person found guilty of the crime of escape or against whom an alternative measure has been revoked. The referring judge considers the limitation "to a period of three years from the previous judgment of acquittal due to the successful completion of the probation” of the "duration of the prohibition of new access to the institution in question” to be appropriate, similar to what is provided for in the aforementioned provision.

4.– The State Attorney General’s Office objects to the inadmissibility of the questions due to lack of relevance and the incoherent formulation of the *petitum*.

Both exceptions must be dismissed.

5.– The State's defense argues that the referring court omitted to formulate, for the defendant, a prognosis of abstention from future crimes and to provide the necessary information on this essential requirement.

The aspects pointed out in the intervention brief do not render the reasoning regarding the relevance of the doubts of constitutional legitimacy implausible.

5.1.– The referring court reports that the defendant’s counsel proposed a request for suspension with probation and that, however, the examination of the request is precluded by the previous use of the benefit in question.

In the Court’s view, the prerequisites for reaching a judgment of acquittal (Article 129 of the Code of Criminal Procedure) are not apparent *prima facie*, nor can a link of continuity be found "between the act subject of the 2016 proceeding in which probation was already ordered and that subject of the current proceeding”: the considerable time gap between the two events prevents them from being traced back to an identical criminal plan, a hypothesis in which the prohibition ceases following this Court’s judgment no. 174 of 2022.

5.2.– As this Court observed when dismissing an objection of the same nature, the referring court will be able to examine the aspects indicated in the intervention brief only after the acceptance of the questions has removed the obstructive condition (judgment no. 174 of 2022, point 2.1.2. of the Having Considered in Law).

The applicability of the contested provision and its impact on the logical path of the decision are, therefore, supported by an adequate argument, which passes the external review regarding the prerequisite of relevance (among many, judgment no. 122 of 2024, point 2.1. of the Having Considered in Law).

6.– Secondly, the State Attorney General’s Office emphasizes the inappropriate formulation of the *petitum*, which would tend to eliminate the prohibition of a second suspension of proceedings with probation and exceed the limits of the main proceedings, concerning a probation concluded with a positive outcome.

This exception also misses the mark.

6.1.– The *petitum* serves the sole function of clarifying the content and direction of the challenges, but it does not bind this Court, which is free to identify the most suitable ruling for the purposes of *reductio ad legitimitatem* (judgment no. 90 of 2025, point 5.4. of the Having Considered in Law).

6.2.– In the present case, the referring court has clearly delimited the issue to be decided and has extensively explained the object and basis of the challenges, both in relation to the questions raised primarily and concerning the questions raised alternatively.

The constitutional legitimacy questions concern the absoluteness of the prohibition of a second grant, in the face of a positive outcome of the probation and the consequent declaration of extinction of the offense.

7.– The questions can, therefore, be examined on the merits.

They are not founded.

8.– The current framework of probation originates from bill A.C. no. 331 - XVII Legislature (Delegation to the Government regarding non-custodial sentences and provisions regarding the suspension of proceedings with probation and concerning those who cannot be found), which followed government bill approved only by the Chamber of Deputies on December 4, 2012 (A.C. no. 5019-bis - XVI Legislature), subsequently transmitted to the Senate of the Republic (A.S. no. 3596 - XVI Legislature) and finally sent back by the assembly to the committee on December 21, 2012, before the early end of the XVI Legislature.

From the parliamentary debate, the multiple purposes of the institution emerge, which "offers convicts for less serious offenses a path of alternative reintegration and, at the same time, performs a burden-reducing function for criminal proceedings as it is provided that the positive outcome of probation extinguishes the offense with a judgment rendered by the judge. In this case too, an attempt was made to combine two different needs: those of rehabilitation for the person who may have committed an offense and those of the security of society, which cannot tolerate that trials do not take place when these could conclude with necessary convictions under the various aspects that the sentence must have according to the Constitution” (A.C. - XVII Legislature - Debates - Session of June 24, 2013 - Stenographic Report - page 103).

The original wording of Article 168-bis of the Penal Code, as approved by the Chamber on July 4, 2013, allowed access to probation twice, except for offenses of the same nature.

In the session of January 21, 2014, no. 170, the Senate introduced the insurmountable limit of granting it only once, with the approval of amendment 3.246 (A.S. - XVII Legislature - Assembly - Stenographic Report - page 200).

9.– The challenges of the referring court are directed at this provision, relating, primarily, to the violation of the presumption of innocence, established by Article 27, second paragraph, of the Constitution and protected, through Article 117, first paragraph, of the Constitution, also by Article 6, paragraph 2, ECHR, in the interpretation now consolidated in the jurisprudence of the Court of Strasbourg (among many, ECHR, Grand Chamber, judgments of July 12, 2013, Allen v. the United Kingdom, and, recently, June 11, 2024, Nealon and Hallam v. the United Kingdom).

9.1.– The contested provision does not breach the presumption of innocence, understood in the axiological richness that this Court has recently reaffirmed (judgment no. 2 of 2026).

9.2.– In general, the presumption of innocence does not limit "its effects within the single criminal proceeding or trial concerning the possible criminal liability of the individual,” but "implies a general prohibition on considering that same individual guilty of the offense attributed to him by the public prosecutor. This prohibition operates, specifically, within any judicial proceeding parallel to the same criminal proceeding or trial, until guilt has been judicially established, definitively, in its proper forum” (judgment no. 24 of 2025, point 4.4. of the Having Considered in Law).

From a perspective of maximum expansion of guarantees, this principle, now also enshrined in Article 48, paragraph 1, of the Charter of Fundamental Rights of the European Union, must be safeguarded in its effectiveness and substance (judgment no. 182 of 2021, point 9 of the Having Considered in Law).

9.3.– In particular, in the special procedure of probation, alternative to trial, "there is, incidentally and based on the existing file (because final ascertainment is reserved for the possible continuation of the trial, in case of a negative outcome of the probation), a consideration of the defendant's liability, since the judge, pursuant to Article 464-quater, paragraph 1, of the Code of Criminal Procedure, must verify that the conditions for ‘rendering a judgment of acquittal pursuant to Article 129’ of the Code of Criminal Procedure do not exist,” and for this purpose may examine the documents in the public prosecutor’s file, must evaluate the defendant’s request, possibly ordering their appearance (Article 464-quater, paragraph 2, Code of Criminal Procedure), and, if deemed necessary, may also acquire further information, pursuant to Article 464-bis, paragraph 5, Code of Criminal Procedure” (judgment no. 91 of 2018, point 7 of the Having Considered in Law).

However, the decision on probation, even when it provides for a legal reclassification of the facts, does not imply any judgment on the merits of the accusation (judgment no. 190 of 2025).

Even the declaration of extinction of the offense, rendered pursuant to Article 464-septies of the Code of Criminal Procedure, does not entail the finding that an offense was committed (Court of Cassation, First Criminal Section, judgment of March 17 - June 21, 2022, no. 23920) and is not suitable for expressing a complete finding on the merits of the accusation and liability (Court of Cassation, Fifth Criminal Section, judgments of November 13 - December 5, 2019, no. 49478, and March 28 - July 7, 2017, no. 33277).

From these premises, it follows that the defendant cannot be ordered to pay damages or reimburse the procedural costs incurred by the civil party (Court of Cassation, First Criminal Section, judgment of April 3 - May 29, 2025, no. 20171).

The prohibition of granting the suspension of proceedings with probation more than once is not, however, connected to a prior finding of criminal liability or a concealed stigma of guilt.

This prohibition expresses the discretionary choice of the legislator to offer the person accused of an offense the possibility, only once, to avoid the trial itself through an alternative path with marked rehabilitative and reparative features, which corresponds to a commitment by the external penal execution services in preparing the program and verifying its outcome.

The circumstance that the person has already availed themselves of this alternative path once thus precludes a second activation, not based on a judgment of guilt for the act with respect to which the proceeding was suspended, but simply because the existence of a new criminal proceeding against the same person shows that the path already experienced proved inadequate to deter them from committing the offense now attributed to them, and for the ascertainment of which the ordinary procedural rules will now apply again.

Such a choice stems from a legislative policy option, which limits the scope of application of a highly specialized institution.

The choice adopted is attributable to that broad margin of appreciation that belongs to the legislator in modulating "non-custodial” punitive law institutions (judgment no. 191 of 2025, point 3.2. of the Having Considered in Law), in compliance with Article 3 of the Constitution and that rehabilitative purpose which permeates the entire criminal sanctioning system and must shape the very configuration of probation (judgment no. 231 of 2018, point 5.3. of the Having Considered in Law).

10.– In the present case, these principles cannot be deemed violated.

11.– First, the alleged violation of the principle of equality (Article 3 of the Constitution) is unfounded.

Characterized by substantial effects, "because it leads to the extinction of the offense,” and "by an intrinsic procedural dimension, as it consists of a new special proceeding, alternative to the trial” (judgment no. 240 of 2015, point 2.1. of the Having Considered in Law), probation presents features of marked innovation, which preclude "a reference in traditional terms to penal constitutional categories” (judgment no. 91 of 2018, point 7 of the Having Considered in Law).

By breaking the sequence that links cognition to the execution of the sentence, the institution in question fundamentally innovates the "traditional systems of sanctioning intervention” and "pursues special prevention purposes at an anticipated stage […] for the purpose of achieving the resocialization of the subject” (Court of Cassation, United Criminal Sections, judgment of March 31 - September 1, 2016, no. 36272).

The irreducible particularity of probation, which borrows certain features from the Anglo-Saxon experiences of probation and diversion and adapts them to our system, is ill-suited to the comparative evaluation that the referring court seeks, by the measure of Article 3 of the Constitution, with the institutions already tested by the legal system.

11.1.– Such comparative evaluation not only disregards the innovative nature and multiplicity of functions of the institution but also reviews a collection of facts that are clearly dissimilar (*ictu oculi*).

The plea-bargaining judgment is generally equated to a conviction (Article 445, paragraph 1-bis, third period, Code of Criminal Procedure), as is the penal decree (Articles 460 and 648 Code of Criminal Procedure).

Such a judgment, with a sentence to be served, is the prerequisite for probation placement with social services and for the penitentiary benefits mentioned in support of the challenges raised alternatively.

This element, far from negligible, serves to mark the distance from the institution of probation, which does not involve any finding of conviction and does not lead to an enforceable title for the application of a typically penal sanction.

Nor does the mere consensual basis, which probation and plea bargaining share, inherently strengthen the comparison between institutions that diverge in salient aspects (judgment no. 91 of 2018, point 7 of the Having Considered in Law).

The treatment programmed in probation, while having afflicting nature, differs from the penal sanction and is left to the spontaneous observance of the defendant.

It is not irrelevant whether the punitive claim finds concrete implementation, as observed in the cases evoked by the referring judge, or whether, conversely, punishability remains confined to the merely abstract level (judgment no. 295 of 1986, point 5 of the Having Considered in Law), according to the characteristics typical of probation.

For the same reasons, no unjustified disparity is found in the fact that a subject who could not benefit from a second probation can access the conditional suspension of the sentence. Indeed, the conditional suspension has its indispensable antecedent in a judgment of conviction, with the consequent imposition of a sentence.

11.2.– The comparison is not practicable even with respect to the compounding of the offense, which is accompanied by the payment, albeit reduced, of the pecuniary sanction of the fine and presents a distinct scope of application, limited to contraventions punishable only by the fine or by the alternative penalty of arrest or fine (Articles 162 and 162-bis of the Penal Code).

Probation may be granted in "proceedings for offenses punishable only by a pecuniary sentence or by a custodial sentence not exceeding four years in maximum, alone, combined or alternative to the pecuniary sentence, as well as for the felonies indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure” (Article 168-bis, first paragraph, Penal Code).

11.3.– Given this broader scope of application, the extinction of the offense due to reparative conduct (Article 162-ter of the Penal Code), provided for in the exclusive hypotheses of complainable offenses subject to remission and for a particular context of private conflict, in which compensation for damages is sufficient to remove the prejudicial consequences of the criminal offense and justify the extinction of the offense, before an exhaustive finding of liability, cannot serve as a suitable *tertium comparationis*.

11.4.– Finally, the probation of minors, to which no prohibition of a second grant applies, cannot usefully be compared with the probation of adults.

While the former adheres to an "essentially rehabilitative and social reintegration purpose” (judgment no. 203 of 2025, point 12 of the Having Considered in Law), the latter has "undeniable sanctioning features” (judgment no. 139 of 2020, point 4.3. of the Having Considered in Law) and is configured as "a negotiated and bargained trial, based on a convenience agreement between the adult investigated and the public prosecutor” (judgment no. 23 of 2025, point 5.4. of the Having Considered in Law) for less serious offenses and aimed at eminently burden-reducing purposes.

12.– Nor are the challenges of unreasonableness, also raised alternatively and inseparably connected with those of violation of the rehabilitative purpose of the sentence, founded.

12.1.– With judgment no. 174 of 2022, this Court declared the constitutional illegitimacy of the contested provision "insofar as it does not provide that the defendant may be admitted to the suspension of proceedings with probation in the event that proceedings are initiated for connected offenses, pursuant to Article 12, paragraph 1, letter b), of the Code of Criminal Procedure, with other offenses for which this benefit has already been granted.”

This preclusion was deemed to create an unreasonable disparity of treatment "between the defendant against whom all the offenses committed in execution of the same criminal plan are contested within a single proceeding, in which he has the possibility of accessing the benefit of the suspension of proceedings with probation, and the defendant against whom criminal action is initially exercised only in relation to some of these offenses, and who sees the others contested, as a result of a discretionary choice of the public prosecutor or other procedural contingencies, within a different proceeding, after he has already accessed probation. This second defendant thus finds himself unable to obtain the benefit a second time, which he would instead have been able to access if all the offenses had been contested to him in a single proceeding” (judgment no. 174 of 2022, point 3.1. of the Having Considered in Law).

The unreasonableness was also assessed from a different point of view. Such a mechanism ended up "frustrating the very legislative intent to sanction in a unitary manner the continuous crime, through an increase in the penalty provided for the most serious crime, according to the general rule set out in Article 81, second paragraph, of the Penal Code – an intent, it should be noted, which is not precluded even by the intervention of *res judicata*, as demonstrated by Article 671 of the Code of Criminal Procedure, which allows the execution judge to redetermine the overall sentence for multiple offenses judged separately with final sentences or penal decrees, taking into account precisely the continuity between them” (ibid., judgment no. 174 of 2022, point 3.4. of the Having Considered in Law).

The same considerations also apply to the "case of formal concurrence governed by Article 81, first paragraph, of the Penal Code, and therefore when multiple offenses are committed by the same person with a single action or omission. In this case too, the legislator provides that the sanctioning treatment is to be determined uniformly by the judge, according to the same rules that apply to the continuous crime: which normally occurs within a single trial” (ibid., judgment no. 174 of 2022, point 3.5. of the Having Considered in Law).

The prohibition on granting suspension of proceedings with probation more than once was therefore declared constitutionally illegitimate by virtue of the "solid, profound legal unity” that pervades the continuous crime (judgment no. 295 of 1986, point 7 of the Having Considered in Law) and the peculiarities of formal concurrence.

In its general scope, the preclusive mechanism does not, conversely, offer any ground for the challenges now submitted to this Court’s review.

12.2.– From the examination of the preparatory work, it can be inferred that, even in the broader original wording, the granting of probation a second time was subject to specific conditions and did not possess the indiscriminate scope that the constitutional challenge seeks to introduce, possibly conditioning it on the passage of a certain period of time.

Even Article 44 of the draft of the so-called Pisapia Commission, from which the legislator drew inspiration, provided that the suspension of proceedings with probation could be granted a second time only for offenses committed before the start of the first probation.

The imposition of limits and conditions, therefore, far from representing an eccentric solution, is inherent to the introduction of a benefit such as the one currently under scrutiny, as also demonstrated by the analysis of previous reform drafts and parliamentary debate.

12.3.– The non-manifest unreasonableness of the legislative choices is further confirmed by the reward-based function of probation, which results in the declaration of extinction of the offense in case of a positive outcome, and by its "strong resocializing vocation”: such a vocation is realized "at an ‘anticipated stage’ […] compared to the trial itself and to any conditional suspension of sentence, to a sentence substituting a short custodial sentence or, in any case, to a sentence whose execution is substituted by an alternative measure” (judgment no. 90 of 2025, point 5.5.2. of the Having Considered in Law).

This distinctly reward-based character justifies, as a counterbalance that is by no means unreasonable or disproportionate, the prohibition of a second grant and the persistence of this prohibition even after the passage of a specific period of time.

12.4.– Nor can a constitutional obligation to extend access to the proceeding in question and its benefits be inferred from the rehabilitative purpose inherent in all criminal sanctions.

12.5.– Furthermore, the very guiding rationale of an institution, called upon to balance multiple demands (rehabilitation, reparation, special prevention) and to offer those who wish to experience it a precious opportunity for social recovery, justifies a limitation in access, which preserves its authentic resocializing vocation.

The reintegration path involves not only the necessary collaboration of the interested party but also the substantial commitment of the State in preparing a treatment program calibrated to the individual's needs.

12.6.– Nor can it be overlooked that the regulation outlined by the law represents the point of balance between the opposing interests at stake, all of primary constitutional relevance: the obligation of criminal action (Article 112 of the Constitution) and the principle of the presumption of innocence (Article 27, second paragraph, of the Constitution), with its corollary *nulla poena sine iudicio*.

In probation, the State renounces the punitive power, according to "a constitutionally compatible form of suspension of the exercise of criminal action, the obligation of which is made less rigid” (judgment no. 146 of 2023, point 3 of the Having Considered in Law), and the interested party, on the other hand, chooses to submit, regardless of a formal finding of liability, to intrusive prescriptions, "which significantly affect the personal freedom of the subject subjected to them, albeit in a way clearly less burdensome than what would occur in the case of application of a custodial sentence” (judgment no. 68 of 2019, point 3.2.1. of the Having Considered in Law).

The identification of a limit to the use of probation is an integral part of the balancing act carried out by the legislator and is functional to the objective of guaranteeing its overall constitutional compatibility.

12.7.– Finally, the reference to the burden-reducing purpose for less serious offenses, which this Court has also recently valued (judgment no. 90 of 2025, point 5.5.2. of the Having Considered in Law), is not decisive.

Not only is the realization of this purpose entrusted to the prudent evaluation of the legislator, but the reduction of pending proceedings does not exhaust the multiple and complex functions of adult probation and must be balanced with these.

The limit currently contested pursues the objective of preserving special prevention, without sacrificing the authentic rehabilitative vocation of the institution and without prejudicing the purpose of effectively alleviating, in a long-term perspective, the burden of pending proceedings.

13.– From the considerations set out above follows the finding that all the questions raised are unfounded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 168-bis, fourth paragraph, of the Penal Code, raised, with reference to Articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 2, of the European Convention on Human Rights, by the Ordinary Court of Florence, First Criminal Section, in sole membership, 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

Giovanni PITRUZZELLA, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on March 17, 2026

 

The anonymized version conforms, in text, to the original