JUDGMENT NO. 31

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, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the constitutional legitimacy review proceedings concerning Articles 33, paragraph 1, letter b), and 39, first paragraph, number 5), and, subordinately, Article 40 of Law of 26 July 1975, no. 354 (Provisions on the Penitentiary System and the Execution of Deprivative and Restrictive Measures of Liberty), initiated by the Ordinary Court of Florence, first Criminal Section, in sole composition, in the criminal proceedings against K. D., with order of 26 May 2025, registered under no. 141 of the register of orders 2025 and published in the Official Gazette of the Republic no. 34, first special series, of the year 2025.

Having reviewed the statement of intervention by the President of the Council of Ministers;

having heard, in the judicial review hearing of 26 January 2026, the Reporting Judge Stefano Petitti;

deliberated in the judicial review hearing of 26 January 2026.

Facts Considered

1.– With order of 26 May 2025, registered under no. 141 of the register of orders 2025, the Ordinary Court of Florence, first Criminal Section, in sole composition, raised questions of constitutional legitimacy regarding Articles 33, paragraph 1, letter b), and 39, first paragraph, number 5), of Law no. 354 of 26 July 1975 (Provisions on the Penitentiary System and the Execution of Deprivative and Restrictive Measures of Liberty), in reference to Articles 3, 15, 27, third paragraph, and 32 of the Constitution.

Subordinately, the same order challenged Article 40 of the Penitentiary Regulations for violation of Article 15 of the Constitution.

1.1.– The referring judge states that it must rule on the charge of willful damage followed by risk of fire, pursuant to Article 424, first paragraph, of the Penal Code, attributed to a convict serving a final sentence who, while under disciplinary isolation for exclusion from common activities, allegedly set fire to the mattress and pillow issued for the detention cell.

The referring judge further reports that, the convict having subsequently committed an act of self-harm, and the medical staff having therefore deemed the isolation regime unsuitable, the reassignment of the person to the ordinary ward was ordered.

1.2.– Stating that the act must be reclassified as damage to property intended for public service, pursuant to Articles 635, second paragraph, number 1), and 625, first paragraph, number 7), of the Penal Code, as the actual existence of the risk of fire was ruled out, the Court of Florence asserts that the accused committed the conduct "in order to escape the condition of isolation which he deemed unbearable."

It infers that the questions, concerning the disciplinary sanction of exclusion from common activities and the pertinent isolation regime, are relevant because, if upheld, they would require the configuration of a justification of "legitimate defense, at least putative," or the exemption for particular slightness of the act pursuant to Article 131-bis of the Penal Code in favor of the accused.

1.3.– On the merits of the main question, the referring judge asserts that the isolation of the convict, "by realizing a coercive separation of the individual from the community to which he belongs," constitutes a measure disproportionate for disciplinary purposes, contrary to the rehabilitative purpose of the sentence, and detrimental to the psychophysical health of the person, especially as it concerns continuous isolation, both during the day and at night.

Furthermore, the reservation of jurisdiction and the reservation of law established by Article 15 of the Constitution would be violated, given that isolation suppresses the convict's freedom to communicate without the guarantee of a reasoned provision by the judicial authority, as the measure is ordered by the disciplinary board, and without even a strict legal provision, as the definition of disciplinary infractions punishable by such a measure and the relevant application procedure are left to regulatory sources.

1.4.– The subordinate question concerning Article 40 of the Penitentiary Regulations is argued with reference to the violation of the reservation of jurisdiction under Article 15 of the Constitution, which the challenged provision allegedly transgresses insofar as it provides that exclusion from common activities is decided by the disciplinary board, an administrative, not judicial, body.

In compliance with the reservation of jurisdiction, the measure should instead be applied, upon proposal by the institution's director, by the supervising magistrate concerning convicts and detainees, or, concerning the accused, by the judge indicated in Article 279 of the Code of Criminal Procedure.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the Advocate General of the State, who requested that the questions be declared inadmissible or unfounded.

2.1.– Regarding admissibility, the State's defense argues that it is not demonstrated that the convict acted in legitimate reaction to the execution of the disciplinary measure.

In any case, he could have, "instead of setting a fire," requested "the mitigation or revocation of the sanction by activating the instruments available to detainees."

In addition to the aspect of legitimate defense, the questions would also be irrelevant from the perspective of the exemption for particular slightness of the act: "the injury to the protected legal interest," the Advocate General submits, "remains of the same gravity regardless of whether the disciplinary sanction, as the cause of the criminal conduct, is declared unconstitutional a posteriori or not."

2.2.– The questions would in any case be unfounded.

The medical checks prescribed by law before the application and during the execution of disciplinary isolation, the maximum duration thereof limited to fifteen days, the possibility for the detainee subject to it to have ordinary visual visits, and, in any case, to appeal to the supervising magistrate, exclude the alleged violations.

In particular, the reservation of jurisdiction under Article 15 of the Constitution would not be violated, given that, even under the isolation regime, the detainee is guaranteed visits with family members, healthcare personnel, and defense counsel; in this regime, only contact with other detainees is precluded, for a maximum of fifteen days; judicial protection is ensured by the rules on appeals to the supervising magistrate, whose review, for the purposes of Articles 35-bis and 69, paragraph 6, letter a), of the Penitentiary Regulations, extends, concerning exclusion from common activities, also to the merits of the sanction.

Considerations on Law

3.– With the order indicated in the heading, the Ordinary Court of Florence, first Criminal Section, in sole composition, challenges Articles 33, paragraph 1, letter b), and 39, first paragraph, number 5), of the Penitentiary Regulations, for violation of Articles 3, 15, 27, third paragraph, and 32 of the Constitution, as well as, subordinately, Article 40 of the Penitentiary Regulations, for violation of Article 15 of the Constitution.

The questions were raised during proceedings concerning the charge of willful damage followed by risk of fire, attributed to a convict who, being under disciplinary isolation for exclusion from common activities, allegedly set fire to the mattress and pillow in the detention cell.

According to the referring judge, since the convict allegedly committed the conduct in reaction to the isolation measure, which he perceived as unbearable, the raised questions, concerning the rules governing this disciplinary measure, would be relevant, under two distinct and sequential profiles: if upheld, they would lead to the configuration of the justification of legitimate defense (at least putative) or the exemption for particular slightness of the act pursuant to Article 131-bis of the Penal Code in favor of the accused.

4.– It is appropriate to begin with a brief illustration of the regulatory framework.

4.1.– Exclusion from common activities is the most severe disciplinary sanction provided for by the penitentiary system, based on the enumeration in the first paragraph of Article 39 of Law no. 354 of 1975, which, precisely for this reason, limits its maximum duration at number 5) ("no more than fifteen days").

The second paragraph of the same Article 39 stipulates that this sanction "cannot be executed without the written certification, issued by the healthcare professional, attesting that the subject can endure it," and adds that the detainee excluded from common activities "is subject to constant medical monitoring," indicating the clear purpose of allowing the immediate cessation of the measure if it proves detrimental to the person's psychophysical balance, contrary to the initial assessment.

In any case, the personal impact of the sanction in question, associated with the continuous isolation regime (Article 33, paragraph 1, letter b, Penitentiary Regulations), is mitigated by the possibility of having family visits, a possibility that never ceases (paragraph 4 of the same Article 33).

At the secondary level, Article 73, paragraph 7, of Presidential Decree no. 230 of 30 June 2000 (Regulation containing provisions on the penitentiary system and on deprivative and restrictive measures of liberty), specifies that the situation of the detainee isolated from peers "must be the subject of particular attention, with adequate daily checks in the isolation location, by both a doctor and a member of the observation and treatment group, and with continuous and adequate supervision by the personnel of the Penitentiary Police Corps."

4.2.– Regarding judicial review, pursuant to Article 69, paragraph 6, letter a), of the Penitentiary Regulations, as amended by Article 3, paragraph 1, letter i), number 2), of Decree-Law no. 146 of 23 December 2013 (Urgent measures regarding the protection of the fundamental rights of detainees and the controlled reduction of the prison population), converted, with amendments, into Law no. 10 of 21 February 2014, the review by the supervising magistrate concerning the exclusion of the detainee from common activities does not concern, as a general rule, only the aspects of the lawfulness of the disciplinary provision, but "also the merits."

The judicial verification can therefore also encompass the adequacy of the measure, concerning its compatibility with the ongoing treatment program (Article 36, second paragraph, Penitentiary Regulations), and the observance of the proportionality standard of the sanction (Article 38, third paragraph, Penitentiary Regulations).

5.– The questions are inadmissible due to lack of relevance, as accurately objected to by the State defense.

5.1.– The Court of Florence challenges the provisions of the penitentiary regulations on disciplinary isolation, which it is not called upon to apply, as the main proceedings concern a charge of willful damage.

The referring judge's contention, aimed at bringing the legitimacy of the disciplinary sanction, which is merely a precursor to the criminal offense, within the scope of his judgment, is legally implausible.

The referring judge posits that, if the questions raised by him were upheld, and the rules on disciplinary isolation were thus declared unconstitutional, the conduct constituting the charge, namely the damage to the cell furnishings, would be justified by legitimate defense, at least putative.

This presentation does not pass the test of non-implausibility of the reasoning regarding relevance, which this Court is required to perform, according to its constant jurisprudence (among others, recently, Judgments No. 21 and No. 10 of 2026).

Indeed, among the prerequisites for the justification of legitimate defense is the inevitability of the danger (Court of Cassation, Fourth Criminal Section, Judgment of 4 July - 29 September 2006, no. 32282; First Criminal Section, Judgment of 25 October - 15 December 2005, no. 45425).

In this case, the detainee could have avoided the danger, which isolation might have posed to his health, by appealing to the supervising magistrate to obtain its revocation or, if the relief from distress was urgent, by requesting prompt medical intervention and admission to the infirmary.

There was no necessity to set fire to the objects in the cell.

Legitimate defense is not conceivable even in putative form.

The error underlying putative legitimate defense cannot be assessed based on an exclusively subjective criterion, nor inferred from the agent's state of mind alone; rather, the objective situation must be considered, as the justification can only arise if the mistaken belief in the necessity of self-defense is justified by concrete factual elements (Court of Cassation, First Criminal Section, Judgments of 5 - 25 July 2024, no. 30608 and 24 November 2009 - 27 January 2010, no. 3464).

In this case, no objective evidence justified the conviction that medical assistance could not be sought to be relieved from isolation, and that it was necessary, to that end, to burn the cell equipment.

5.2.– As an alternative to the hypothesis of legitimate defense, the referring judge asserts that a declaration of unconstitutionality of the rules on disciplinary isolation would render the act forming the basis of the damage charge of particular slightness, which would thus be unpunishable, under Article 131-bis of the Penal Code.

This hypothesis, however, also fails the test of non-implausibility of the reasoning regarding relevance.

The penitentiary system grants the detainee specific legal remedies to challenge the disciplinary sanction and the very constitutional legitimacy of the norms on which it is based, but a spontaneous reaction against a perceived injustice, such as the one attributed to the accused, remains certainly unlawful; thus, even if this Court recognized the constitutional illegitimacy of the discipline on disciplinary isolation, this would not, in itself, render the damage caused by the detainee of particular slightness and lead to the recognition, in his favor, of the cause of non-punishability under Article 131-bis of the Penal Code.

Moreover, pursuant to the first paragraph of this provision, the modalities of the conduct and the insignificance of the damage or danger must be assessed, for the purpose of the exemption, based on the parameters of the first paragraph of Article 133 of the same Code; therefore, the disvalue of the act must be measured based on a unified consideration of the indicators relating to the conduct, the damage, and the culpability (Court of Cassation, United Criminal Sections, Judgment of 25 February - 6 April 2016, no. 13681), although the judge is not required to examine all the aforementioned criteria, it being sufficient that he specifies the one to which he refers decisively (Court of Cassation, Sixth Criminal Section, Judgment of 8 November - 10 December 2018, no. 55107).

None of the legal standards for slightness of the act, therefore, concerns the legal grounds for the conduct. And this is obvious, since otherwise every normative challenge, which must instead follow the forms provided for by the legal system, would be of particular slightness.

6.– In conclusion, all questions must be declared inadmissible.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the questions of constitutional legitimacy of Articles 33, paragraph 1, letter b), and 39, first paragraph, number 5), of Law of 26 July 1975, no. 354 (Provisions on the Penitentiary System and the Execution of Deprivative and Restrictive Measures of Liberty), raised, in reference to Articles 3, 15, 27, third paragraph, and 32 of the Constitution, by the Ordinary Court of Florence, first Criminal Section, in sole composition, with the order indicated in the heading;

2) declares inadmissible the question of constitutional legitimacy of Article 40 of Law no. 354 of 1975, raised subordinately, in reference to Article 15 of the Constitution, by the Ordinary Court of Florence, first Criminal Section, in sole composition, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 26 January 2026.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on 17 March 2026

 

The anonymized version conforms, in text, to the original