JUDGMENT NO. 32

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 proceedings concerning Articles 164, second paragraph, number 1), and 178, last clause, of the Penal Code, initiated by the Judge for Preliminary Hearings of the Ordinary Court of Catania, in the criminal proceedings against S. G., by order of February 21, 2025, registered under no. 81 of the register of orders 2025 and published in the Official Gazette of the Republic no. 20, first special series, of the year 2025, the hearing of which was set for the deliberation in chambers on January 26, 2026.

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

having heard, in the deliberation in chambers on January 28, 2026, the Reporting Judge Roberto Nicola Cassinelli;

deliberated in the deliberation in chambers on January 28, 2026.

Having Considered in Fact

1.– By order of February 21, 2025, registered under no. 81 of the register of orders 2025, the Judge for Preliminary Hearings of the Ordinary Court of Catania raised a question of constitutional legitimacy of Articles 164, second paragraph, number 1), and 178, last clause, of the Penal Code, in reference to Articles 3, 25, and 27 of the Constitution, insofar as they preclude the granting of the conditional suspension of the sentence to those who have a prior conviction for a custodial sentence exceeding the limits set out in Article 163 of the Penal Code, even where rehabilitation has occurred.

1.1.– The referring judge reports that he is called to rule on the request pursuant to Article 444 of the Code of Criminal Procedure, submitted by the defendant in the crime under Article 589-bis of the Penal Code (Road Homicide), a request—to which the Public Prosecutor of the same Court of Catania has expressed assent—involving the application of a sentence of one year, two months, and six days of imprisonment, conditional upon the recognition of the benefit of conditional suspension. He notes, however, that the defendant has previously been convicted—by sentences that became final on November 4, 1968, and March 19, 1977, respectively—to a sentence of imprisonment of two years and five months, coupled with a fine (subsequently converted) of €30.99, as well as five days of arrest and €5.16 of fine (again, with conversion), in one case for the crime of aggravated theft, and in the other for an infraction concerning the violation of mandatory vehicle and boat insurance regulations. With regard to both these convictions—it further reads in the referral order—rehabilitation, granted by the Court of Appeal of Catania by judgment of March 17, 1988, is on record.

1.2.– Having established this, the a quo judge observes that, for the purpose of accepting the application of the sentence request, which is conditional upon the conditional suspension, the provision of Article 164, second paragraph, of the Penal Code, acts as an obstacle, since this provision—at number 1)—excludes from the said benefit "who has a prior conviction for a crime punishable by imprisonment, even if rehabilitation has occurred.”

The defendant’s counsel therefore alleged the unconstitutionality of the aforementioned provision, for violation of Articles 3 and 27 of the Constitution, and the aforementioned Judge for Preliminary Hearings of the Court of Catania deemed the question relevant in the first instance. In fact, given that the prerequisites for the acquittal of the defendant pursuant to Article 129 of the Code of Criminal Procedure are not met in this case, the referring judge highlights that the acceptance of the question—based on indications derivable from the constitutional jurisprudence itself—would "have the effect of removing the preclusion currently imposed” by the challenged provision, "thus allowing him to assess on the merits” the existence of the prerequisites for recognizing the conditional suspension; for this reason, it is not necessary "to dwell on the existence of the requirements for the benefit,” given that "such assessment is logically subsequent to the removal of the preclusion established by the challenged provision,” since it "currently absolutely prohibits” the granting of the benefit (referring to this Court’s judgment no. 174 of 2022).

Similarly, the circumstance that the defendant, "due to his advanced age” (being over eighty) "might not serve the sanction eventually imposed on him,” would not exclude the relevance of the question—still according to the referring judge. This is because, firstly, the application of a sanction entails—in the absence of suspension—its execution, and secondly (and most importantly), because "the decision regarding the manner of application of the sanction is temporally and logically subsequent to that regarding its imposition.”

1.3.– In addition to being relevant, the question of constitutional legitimacy—the Judge for Preliminary Hearings of Catania also highlights—would also not be manifestly unfounded, based on the rationes and prerequisites of both the conditional suspension of the sentence and rehabilitation itself, as regulated by Articles 164 and 178 of the Penal Code, particularly as interpreted by this Court.

With regard to rehabilitation, the referring judge recalls that it constitutes a cause for the extinction of the sentence and the penal effects of the conviction, "unless the law provides otherwise” (which is precisely the case contemplated by Article 164, second paragraph, number 1, of the Penal Code), whilst remaining true that it is "one of the instruments for implementing Article 27 of the Constitution and the rehabilitative function of the penalty.” Rehabilitation, therefore, constitutes a "constitutionally necessary institute,” configured not as a "benefit in favor of the convicted person,” but as the object of "a genuine legally protected expectation in the face of ‘effective and constant proof of good conduct,’ that is, the ascertainment that, after serving the sentence, the offender has integrated into the community.” Therefore—it is argued—the limitation on the extinguishing effect of rehabilitation, provided for by the last clause of Article 178 of the Penal Code, "must be interpreted strictly and restrictively,” and must be justified "by reason of specific constitutional requirements,” which are deemed absent in this case.

Regarding the conditional suspension of the sentence, the referring judge emphasizes the evolution it has undergone due to the interventions, first, of the constitutional jurisprudence and subsequently of the legislature.

Indeed, if in the original text of Article 164, last paragraph, of the Penal Code, the conditional suspension was a benefit that could be granted only once, this Court—the referring judge recalls—first recognized "the possibility of granting it when the second crime is linked by the tie of continuity to the one previously punished with a suspended sentence” (judgment no. 86 of 1970), and subsequently admitted "this possibility even in the case of a new conviction for a crime committed prior to the previous one,” always provided that "the sentence to be imposed, cumulated with the one already suspended, does not exceed the limits established for the applicability of the benefit” (judgment no. 73 of 1971).

Following these rulings, the legislature amended—by Article 12 of Decree-Law April 11, 1974, no. 99 (Urgent Provisions on Criminal Justice), as replaced by the sole article of the conversion law of June 7, 1974, no. 220—the text of the last paragraph of Article 164 of the Penal Code, reiterating, in general terms, that the conditional suspension of the sentence cannot be granted more than once, but at the same time providing that the judge, when imposing a new conviction, may "order the conditional suspension if the sentence to be imposed, cumulated with that imposed by the previous conviction also for a crime, does not exceed the limits established by Article 163” of the same Code.

The legislative intervention was, however, followed by a new declaration of unconstitutionality, intended to strike down (the then) amended text of Article 164, last paragraph, of the Penal Code, insofar as it did not allow the granting of the conditional suspension of the sentence to those who had already received a prior conviction for a custodial sentence for a crime not suspended (allowing it only to those who had previously benefited from the suspension for that conviction), provided, of course, that the sentence to be imposed, cumulated with that imposed by the previous conviction, did not exceed the limits established by Article 163 of the Penal Code (judgment no. 95 of 1976).

In particular, this Court, in comparing the two situations (i.e., that of someone previously convicted who had not benefited from the suspension of the sentence, and that of someone who had, conversely, enjoyed this benefit), held that the fact that "in the second case there already exists a positive prognostic evaluation that the new judge must verify, in light of the new event that has occurred, while in the first case there is, on the contrary, a negative judgment that might be considered validated and confirmed by subsequent events” could not justify the distinction. In fact, "the commission of a new crime by someone who has a prior conviction could, if anything, demonstrate, through facts, the error in the first judge’s assessment of the offender’s non-recidivism and that the latter does not deserve more favorable treatment” than that reserved for those who have not previously benefited from such an assessment. But, above all, this Court considered it "decisive”—as highlighted in the referral order—that "human personality is subject to evolution and change,” and it therefore did not appear "reasonable to condition the assessment of the offender’s propensity for crime, to be formed on the occasion of the second conviction, on the assessment made at a previous or even remote time by another judge,” given that "it cannot be excluded that the serving of a previous sentence may have caused a positive evolution in the personality of the convicted person.”

On these grounds, the referring judge—by emphasizing the non-conformity with the Constitution, affirmed by this Court, of excluding the conditional suspension solely on the basis of the existence of a conviction for a custodial sentence not previously suspended—deems that this same "restrictive approach of the 1930 Code,” already challenged by constitutional jurisprudence, informs the prohibition provided for in Article 164, second paragraph, number 1), of the Penal Code, of granting the conditional suspension of the sentence in the event of a prior conviction subject to rehabilitation. And this, "as if the social stigma pursued the offender throughout life and regardless of any other consideration,” ignoring, instead, "factual developments that prove the definitive departure of the person from the crime and from the ‘culture’ expressed through its commission.”

This view of conditional suspension, it is argued, is of dubious compatibility with the constitutional parameters recalled above.

In fact, according to this Court, the referring judge points out, just as "Article 3 of the Constitution requires that the penalty be proportional to the disvalue of the illicit act committed, so that the sanctioning system fulfills simultaneously the function of social defense and that of protecting individual positions” (as required, moreover, by Article 49, paragraph 3, of the Charter of Fundamental Rights of the European Union), similarly, Article 27 of the Constitution renders the principle of the rehabilitative purpose of the penalty "one of the essential and general qualities that characterize the penalty in its ontological content, and accompany it from its birth, in the abstract normative provision, until it is concretely extinguished,” requiring, in particular, "a constant principle of proportion between the quality and quantity of the sanction, on the one hand, and the offense, on the other” (judgment no. 236 of 2016).

In this perspective, the conditional suspension of the sentence and the non-mention of the conviction in the criminal record, far from "expressing generic leniency or unmotivated ‘escape from sanction’ towards offenders,” constitute—the referring judge continues, reiterating this point of this Court’s jurisprudence— "key institutes in view of the function constitutionally assigned to the penalty today by Article 27, third paragraph, of the Constitution.” As specifically regards the conditional suspension, it "was conceived from its origin as functional to ensuring, for offenders of non-particular gravity, a warning effect associated with the conviction pronounced against them, while sparing them, especially in the case of a first conviction, the prison experience,” because, for a long time, "doctrine had, in effect, shown that short custodial sentences—too short to provoke a path of rehabilitation, but already capable of exposing the offender to the influence of criminal subcultures and, in any case, to interrupt their affective, family, social, and work relationships with the community—produced significant criminogenic and de-socializing effects” (judgment no. 208 of 2024). According to the judgment just cited, the referring judge always recalls, the institute of conditional suspension is placed "in full harmony with the constitutional principle of the rehabilitative purpose of the penalty under Article 27, third paragraph, of the Constitution: a purpose that the conditional suspension pursues, moreover, not only negatively—by avoiding the aforementioned criminogenic and de-socializing effects of short custodial sentences—but also through the threat of revocation of the benefit, which encourages the offender to abstain from further crimes during the suspension period, as well as through the compensatory, restorative, or recovery obligations that, as the case may be, may or must be imposed on the convicted person pursuant to Article 165 of the Penal Code, thus conferring a positive re-socializing content also on the benefit” (thus, again, judgment no. 208 of 2024).

The connotation of the conditional suspension of the sentence as an *octroyée* benefit, the referring judge continues, is thus superseded by the principle of proportionality of the penalty and that of the rehabilitation of the convicted person.

Now, Article 164, second paragraph, number 1), of the Penal Code—since it effectively gives prevalence to recidivism over all other aspects—would be of dubious constitutionality, leading to that situation, already challenged by this Court, constituted by the "abnormal emphasis on the subjective components attributable to repeated recidivism, to the detriment of the objective components of the crime” (judgment no. 188 of 2023).

In conclusion, the referring judge maintains, "the system of Articles 178 and 164 of the Penal Code is unbalanced and irrational in violation of the standard of reasonableness of Article 3 of the Constitution,” particularly "because it excludes the discretionary power of the judge which, instead, Articles 132 and 133 of the Penal Code grant him,” and furthermore because it does not allow him "to consider the events subsequent to the commission of the ‘first’ crime, the time elapsed between one crime and the next, the connection between them, the offender’s subsequent rehabilitation following the ‘first’ crime.”

Nor, conversely, could the ruling of the Court of Cassation be invoked—which, moreover, was issued a long time ago—which deemed the question of constitutional legitimacy, raised in reference to Article 3 of the Constitution, of Article 164, second paragraph, number 1), of the Penal Code, manifestly unfounded, on the ground that the antisocial conduct of someone who has obtained rehabilitation demonstrates persistence in crime and does not allow for a favorable prognostic judgment on their future abstention from committing further crimes (Court of Cassation, third criminal section, judgment of October 25, 1974–March 18, 1975, no. 3019).

In fact, this outcome is not only "contrary to the personalization of the penalty,” which rejects—the referring judge emphasizes— "unreasonable and disproportionate automatisms and requires that an almost individualized treatment be constructed for each convicted person,” but it is also "repudiated” by the judgment with which this Court "gave prominence to the individualized assessment of the judge” (this is the already cited judgment no. 95 of 1976).

1.4.– On these grounds, therefore, the Judge for Preliminary Hearings of the Court of Catania concluded that the combined provisions of Articles 164, second paragraph, number 1), and 178, last clause, of the Penal Code, insofar as they prevent "the granting of conditional suspension to anyone convicted of a custodial sentence for a crime exceeding the limits indicated by Article 163, even though rehabilitation has occurred,” are in contrast:

"– with the principles of proportionality of the penalty established by Article 27 of the Constitution and of equality-reasonableness, because they require that the penalty for committing a crime be imposed regardless of the subsequent rehabilitation, that is, the judicial finding of the actual rehabilitation of the convicted person and their active integration into the social context, and thus of all elements capable of showing a reduced capacity for crime on the part of the defendant;

– always with the principles of equality and rehabilitation, because the indiscriminate application of the sanction for the ‘second’ crime entails the imposition of a disproportionate penalty and therefore perceived as unjust by the convicted person;

– with the principle of reasonableness and of the offensiveness of the crime under Article 25 of the Constitution, because—faced with the need to prevent recidivism—it does not consider the evolution of the offender’s personality and results in "an excessive amplification, in deterrent terms, of the general-preventive purpose of the penalty […] having to do with the punishment phase, [and] displays almost null preventive effects, but implies a very significant sacrifice of the principle of equality and the principle of proportionality of the penalty.”

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, concluding for the inadmissibility of the question and, in any event, subordinately, for its non-foundation.

2.1.– Regarding the alleged inadmissibility, it is argued that the question was brought to the attention of this Court "in a completely deficient manner, moreover lacking systematic indications regarding the existence of a ‘living law’ contra Constitutionem.”

It is argued, in particular, that the a quo judge failed to specify "how the combined provisions of Article 164 C.P. paragraph and no. 1 and paragraph 4 can constitute a violation of the principle of proportionality of the penalty, by being contrary to the principle of the rehabilitative purpose of the penalty.” In fact, it is highlighted that Article 164, second paragraph, number 1), of the Penal Code, "read together with paragraph 4, does not absolutely exclude the possibility of granting the conditional suspension of the sentence based on an absolute presumption of dangerousness of the offender, linked to a rigid (pre) prognostic judgment of the future commission of crimes by the convicted person, but rather excludes the granting of conditional suspension only if the sentence to be imposed, cumulated with that imposed by the previous conviction also for a crime, exceeds the limits established by Article 163 C.P.”. The order, therefore, would be "deficient in not clarifying how the exceeding of the limit established by Article 163 C.P., the only one precluding the granting of conditional suspension, can be considered contrary to the constitutional parameters identified by the a quo judge.”

The inadmissibility of the question is also suggested on another ground.

In the referral order—the intervening President of the Council of Ministers observes—it is stated that "the defendant has already been sentenced to two years and five months of imprisonment and five days of arrest (converted into a pecuniary penalty).” However, as highlighted by the jurisprudence of the Court of Cassation, the institute of conditional suspension "has been subjected to limits that, during the subsequent amendments to Articles 163, 164, and 168 of the Penal Code, for reasons of criminal policy and based on social and judicial assessments, have been increasingly expanded, but not to the extent of including the situation of one who, after being convicted twice to a custodial sentence for crimes not linked by the tie of continuity, commits a third one, since in that case the repetition of the crimes suggests a propensity for crime that would not be contained by the pendency, on the part of the convicted person, of a conditionally suspended sentence.” In fact, "in the case where other crimes follow a previous conviction with a suspended sentence,” the Court of Cassation has clarified that "the conditional suspension of the sentence can be reiterated, if there is an intermediate conviction, only when the latter concerns a misdemeanor or the penalty of a fine for a crime (that is, crimes considered, by the legal system, of lesser gravity), since otherwise, the repetition of the benefit is precluded by the provision of Article 164 C.P.” (Court of Cassation, fifth criminal section, judgment of June 27–October 6, 2014, no. 41645).

The referring judge failed to address this circumstance.

2.2.– In any case, the question raised would be unfounded.

In fact, constitutional jurisprudence has affirmed that the inhibition of conditional suspension necessarily presupposes a current prognostic judgment, exclusively within the competence of the judge, on the possibility that the offender "will refrain from committing further crimes,” a judgment based on a full consideration of the circumstances and the personality of the guilty party. Having made this premise, it must be pointed out—according to the President of the Council of Ministers—that, within the limit identified by Article 163 of the Penal Code, "the judge has full knowledge of the circumstances and the personality of the guilty party for the purpose of applying the conditional suspension,” so that "[o]nly beyond this limit has the legislature identified preclusions aimed at demarcating the application of the institute.” Therefore, the conclusion is that an "excessive judicial discretion on the appropriateness of applying the conditional suspension” would reverberate "on the demarcation between punishability and non-punishability, on the application of a more or less favorable treatment.”

Considered in Law

3.– With the order indicated in the heading, the Judge for Preliminary Hearings of the Court of Catania raised a question of constitutional legitimacy of Articles 164, second paragraph, number 1), and 178, last clause, of the Penal Code, in reference to Articles 3, 25, and 27 of the Constitution, challenging them insofar as they preclude the granting of the conditional suspension of the sentence to those who have a prior conviction for a custodial sentence exceeding the limits set out in Article 163 of the Penal Code, even where rehabilitation has occurred.

3.1.– The Judge for Preliminary Hearings, called to rule—in relation to an indictment for the crime under Article 589-bis of the Penal Code (Road Homicide)—on a request for plea bargaining providing for the application of a sentence of one year, two months, and six days of imprisonment, conditional upon the recognition of the benefit of conditional suspension, highlights the impossibility of accepting the request, given that Article 164, second paragraph, number 1), of the Penal Code precludes the recognition of the benefit "to those who have a prior conviction for a crime punishable by imprisonment, even if rehabilitation has occurred.” Such is, precisely, the case in point, considering that the defendant is burdened with a distant prior conviction—the conviction sentence became final on November 4, 1968—for the crime of aggravated theft, punished with a sentence of two years and five months of imprisonment, coupled with a fine of €30.99 (subsequently converted), a conviction subject to rehabilitation, by the Court of Appeal of Catania, by judgment of March 17, 1988, as well as another conviction, which became final on March 19, 1977, to five days of arrest and €5.16 of fine (again, with conversion), for an infraction concerning the violation of mandatory vehicle and boat insurance regulations.

3.2.– Having established this, the referring judge, after explaining the reasons for the relevance of the question—highlighting how the aforementioned Article 164, second paragraph, number 1), of the Penal Code, obstructs the acceptance of the plea bargaining request, given the impossibility of granting the benefit of conditional suspension of the sentence, in the presence of a prior conviction for a crime even if subject to rehabilitation—illustrates the reasons for the non-manifestly unfounded nature of the question. In particular, after reconstructing the ratio of the institute of rehabilitation, indicated as "one of the instruments for implementing Article 27 of the Constitution and the rehabilitative function of the penalty,” the a quo judge retraces the evolution experienced by the conditional suspension of the sentence, also thanks to the contribution of constitutional jurisprudence.

He emphasizes, therefore, that the scope of this latter institute—conceived by the legislature, initially, as a benefit that could be granted only once (and regarding which the existence of a prior conviction for a custodial sentence for a crime, "even” if subject to rehabilitation, was an obstacle to its repeated application)—has been progressively broadened by this Court. In fact, the possibility of benefiting from the suspension, first admitted (judgment no. 86 of 1970) when the second crime is linked, by the tie of continuity, to the one already punished with a suspended sentence (thus overcoming the ban on double granting), and subsequently extended to the case of a new conviction for a crime committed prior to the previous ruling (judgment no. 73 of 1971), was finally recognized—after the legislature, precisely based on these findings, intervened to amend the text of Article 164 of the Penal Code by Article 12 of Decree-Law no. 99 of 1974, as converted—also in the presence of a prior conviction with a non-suspended sentence (judgment no. 95 of 1976). This latter outcome was motivated by this Court on the ground that "human personality is subject to evolution and change,” so that "it does not appear reasonable to condition the assessment of the offender’s propensity for crime, to be formed on the occasion of the second conviction, on the assessment made at a previous or even remote time by another judge” (thus, the cited judgment no. 95 of 1976, particularly point 5 of the Considered in Law).

The foregoing considerations form the basis of the reasoning followed by the referring judge, who highlights that the preclusion to granting the benefit of conditional suspension, arising from a conviction for a custodial sentence for a crime even if subject to rehabilitation, constitutes an automatism incompatible with the need, instead, to update the assessment of the offender’s propensity (or lack thereof) for crime. This, in particular, on the assumption that this preclusion is unreasonable, as well as contrary to the rehabilitative purpose of the penalty, if it is true that the conditional suspension of the same constitutes one of those "key institutes in view of the function constitutionally assigned to the penalty today by Article 27, third paragraph, of the Constitution” (judgment no. 208 of 2024).

4.– The President of the Council of Ministers intervened in the proceedings, opposing the acceptance of the question, fundamentally on the basis of two arguments (or rather, two preliminary exceptions).

On the one hand, it is argued that the referral order failed to explain how "the exceeding of the limit established by Article 163 C.P., the only one precluding the granting of conditional suspension, can be considered contrary to the constitutional parameters identified by the a quo judge.” On the other hand, it is pointed out that "the defendant has already been sentenced to two years and five months of imprisonment and five days of arrest (converted into a pecuniary penalty),” hence the impossibility of benefiting from the suspension. This is because, "in the case where other crimes follow a previous conviction with a suspended sentence,” according to the jurisprudence of the Court of Cassation, "the conditional suspension of the sentence can be reiterated, if there is an intermediate conviction, only when the latter concerns a misdemeanor or the penalty of a fine for a crime (that is, crimes considered, by the legal system, of lesser gravity), since otherwise, the repetition of the benefit is precluded by the provision of Article 164 C.P.” (reference is made, in particular, to Cass. no. 41645 of 2014).

5.– The examination of this constitutional legitimacy question must begin with the analysis of the exceptions raised by the State defense.

5.1.– The first exception—which addresses an actual problem, namely that of the exceeding, in the case forming the subject of the a quo judgment, of the cumulation of sentences, an obstacle to the granting of the benefit of conditional suspension, resulting from the combined provisions of Articles 163 (in this case, third paragraph, given the defendant’s age) and 164, fourth paragraph, of the Penal Code—is unfounded.

The referring judge, contrary to what is argued by the State Attorney General’s Office, is fully aware of the preclusive effect—with respect to the benefit of conditional suspension for the defendant in the a quo judgment—deriving from the cumulation of the sentence, subject to the plea bargaining request, with that imposed pursuant to the conviction for a crime, subject to rehabilitation. It is not by chance, in fact, that his initiative concerns (see, in particular, page 14 of the referral order) Article 164, second paragraph, number 1), of the Penal Code, "insofar as it prevents the granting of conditional suspension to anyone convicted of a custodial sentence for a crime exceeding the limits indicated by Article 163, and even though rehabilitation has occurred.” Furthermore, it cannot be said—as, instead, is objected by the President of the Council of Ministers—that the referring judge omitted to explain how the exceeding of this limit "can be considered contrary to the constitutional parameters” invoked. Underlying the constitutional challenge is, in fact, the idea—which will be discussed further in the merits review—that, once the declaration of unconstitutionality of the challenged norms is obtained, the conviction subject to rehabilitation loses relevance for "every penal effect,” thus allowing the judge, in the absence of automatic preclusions, to discretionaryly assess the appropriateness of granting conditional suspension.

5.2.– The second exception raised by the State Attorney General’s Office appears prima facie groundless.

In fact, the jurisprudential precedent cited by the defense of the President of the Council of Ministers is not relevant to the case at hand. It reiterates, in truth, the established principle—already expressed by the Court of Cassation, joint criminal sections, judgment of January 28–February 28, 1984, no. 1718—according to which "the conditional suspension of the sentence can be reiterated, if there is an intermediate conviction, only when the latter concerns a misdemeanor or the penalty of a fine for a crime,” since only outside these cases is "the repetition of the benefit precluded by the provision of Article 164 C.P.”

In application of this principle, no preclusion arises—in the procedural event from which the constitutional challenge submitted to the examination of this Court originated—from the intermediate conviction suffered by the defendant in the a quo judgment: this is because no "repetition” of the conditional suspension of the sentence is at issue (a benefit never previously enjoyed by him) and, in any case, because the aforementioned intermediate conviction, if it could be relevant, concerned a misdemeanor, not a crime.

6.– Having established this, the question of constitutional legitimacy raised by the Judge for Preliminary Hearings of Catania is well-founded, with reference to Articles 3 and 27 of the Constitution (with absorption, instead, of the challenge concerning the violation of Article 25 of the Constitution) and leads to the declaration of unconstitutionality of Article 164, second paragraph, number 1), of the Penal Code, and not also Article 178 of the same Code, which merely regulates the consequences of rehabilitation. The latter provision, therefore, does not have the effect of precluding, in the presence of a prior conviction subject to rehabilitation, the granting of the benefit of conditional suspension of the sentence. There is, therefore, no reason to declare its unconstitutionality, hence the non-foundation—in relation to all the parameters invoked—of the challenge that addresses it.

6.1.– As for the challenge concerning Article 164, second paragraph, number 1), of the Penal Code, it is useful to recall the conditions (Article 179 of the Penal Code) as well as the effects of the institute of rehabilitation.

As for the former, they are both "positive” and "negative” in nature.

Positive conditions are the passing of a term—ordinarily three years, increased, respectively, to eight for recidivists and to ten for habitual, professional, or tendency criminals (Article 179, first, second, and third paragraphs, of the Penal Code)—from the day on which the main penalty has been served or has otherwise been extinguished (a specific regulation is provided, also regarding the starting point, in the case where the imposed penalty was conditionally suspended), as well as the existence of effective and constant proof of good conduct on the part of the convicted person (Article 179, seventh paragraph, of the Penal Code).

Negative—or rather, preclusive—conditions are the continued subjection to a security measure (with the exception of the expulsion of a foreigner from the State or confiscation) and the failure to fulfill civil obligations arising from the crime, unless the interested party demonstrates the impossibility of fulfilling them (Article 179, sixth paragraph, numbers 1 and 2, of the Penal Code).

As for the effects of rehabilitation, they consist of the extinction of temporary accessory penalties and of "every other penal effect of the conviction,” being, however, "not irreversible,” since the automatic revocation of rehabilitation is contemplated "if the rehabilitated person commits, within seven years, a non-culpable crime, for which a sentence of imprisonment for a term not less than two years is imposed, or another more severe penalty” (Article 180 of the Penal Code).

6.2.– Having stated this regarding the regulation of rehabilitation (and, therefore, concerning the normative context in which the invalidating intervention requested of this Court should be placed), it must be noted—as correctly observed by the referring judge—that the conditional suspension of the sentence has undergone a profound evolution over time.

It, "from its origin conceived as functional to ensuring, for offenders of non-particular gravity, a warning effect associated with the conviction pronounced against them, while sparing them, especially in the case of a first conviction, the prison experience” (and this on the assumption that "short custodial sentences—too short to provoke a path of rehabilitation, but already capable of exposing the offender to the influence of criminal subcultures and, in any case, to interrupt their affective, family, social, and work relationships with the community—produced significant criminogenic and de-socializing effects”), has retained this "essential ratio” even today (judgment no. 208 of 2024). This occurred "in full harmony with the constitutional principle of the rehabilitative purpose of the penalty under Article 27, third paragraph, of the Constitution: a purpose that the conditional suspension pursues, moreover, not only negatively—by avoiding the aforementioned criminogenic and de-socializing effects of short custodial sentences—but also through the threat of revocation of the benefit, which encourages the offender to abstain from further crimes during the suspension period, as well as through the compensatory, restorative, or recovery obligations that, as the case may be, may or must be imposed on the convicted person (thus, again, judgment no. 208 of 2024, particularly point 3.1 of the Considered in Law).

Nevertheless, if the purposes of the suspension have remained unchanged over time, its prerequisites have changed compared to the initial choices of the 1930 Penal Code.

In particular, the suspension was originally conceived as a benefit that could be enjoyed only once, on the assumption that a "relapse” into crime—when it involved a crime punishable by imprisonment—precluded its renewed application, denoting a propensity for crime on the part of the offender. This same logic inspires (or inspired), therefore, the provision—Article 164, second paragraph, number 1), of the Penal Code—according to which the conditional suspension cannot be granted to those who have "a prior conviction for a crime punishable by imprisonment, even if rehabilitation has occurred,” as well as to the "habitual or professional offender or misdemeanant.” The mere fact of "recidivism”—even by a "rehabilitated” subject—precluded, in this perspective, the enjoyment of the benefit; this based, substantially, on an (absolute) "presumption” of unworthiness.

However, this Court—as the referring judge recalls—has not only declared the prohibition of double granting of conditional suspension unconstitutional (excluding, instead, the unconstitutionality of the legislative choice to limit the enjoyment of the benefit to twice, deeming it not unreasonable "to allow the conditional suspension of the sentence even in case of recidivism, but only in case of primary recidivism and not of multiple recidivism”; judgment no. 133 of 1980, similarly judgment no. 361 of 1991), but has also admitted that it can be granted, for the first time, in the presence of a prior conviction with a non-suspended sentence (judgment no. 95 of 1976, cited several times), and, therefore, in a situation where the previous "negative judgment” on future abstention from crime "might be considered validated and confirmed by subsequent events.” In fact, the assessment of the applicability of conditional suspension, far from being entrusted to automatisms, must be carried out on the assumption that "human personality is subject to evolution and change,” it being therefore "unreasonable to condition the assessment of the offender’s propensity for crime” on a "assessment made at a previous or even remote time by another judge” (thus, again, judgment no. 95 of 1976, particularly point 5 of the Considered in Law), whereas the authority called upon to rule on responsibility for the new crime must be left free to make that "prognosis of repentance”—which is the basis for connecting the benefit— "according to the rules of judgment under Article 133 of the Penal Code” (judgment no. 361 of 1991) and in the perspective that conceives conditional suspension as one of those "key institutes in view of the function constitutionally assigned to the penalty today by Article 27, third paragraph, of the Constitution” (judgment no. 208 of 2024).

In light of these considerations, it is therefore unreasonable that—for the mere fact of the existence of a prior conviction, subject to rehabilitation—the judge is precluded from that prognostic assessment of the absence of a propensity for crime which is, instead, permitted to him in the presence of a previously imposed and suspended sentence, and therefore still based on a prognosis of non-recidivism that proved fallacious. In fact, it is not clear what greater "stigma” characterizes—compared to what occurs in the latter hypothesis—the conduct of the rehabilitated subject, since the latter has disappointed expectations regarding their complete reintegration into society just as much as someone who has already benefited from the suspension, yet can benefit from it again.

Moreover, the conclusion that the question should be accepted is corroborated by the finding that two of the main government draft laws for the reform of the Penal Code, enacted between the end of the last century and the beginning of the current one, while starting from opposing views of conditional suspension, since one aimed at extending the scope of the institute and the other at reducing it, agreed on the need to repeal Article 164, second paragraph, number 1), of the Penal Code, deemed no longer in line with the regulation of the institute, achieved following the interventions of this Court, even before those of the legislature.

6.3.– The circumstance—partially discussed in point 5.2.—that the acceptance of the question would further result in excluding that, in the case of a prior conviction subject to rehabilitation, the custodial sentence for the crime committed at that time can also be relevant (only) for the purpose of observing the penalty limits under Articles 163 and 164, fourth paragraph, of the Penal Code, thus allowing the benefit even when, cumulating the custodial sentence subject to suspension with the one previously imposed, these limits are exceeded, does not, however, prevent the declaration of unconstitutionality of Article 164, second paragraph, number 1), of the Penal Code.

This Court, in fact, has affirmed that conditional suspension is an institute whose regulation remains "at the discretionary assessment of the legislature in general and abstract terms, even before that of the judge, to be carried out on a case-by-case basis” (judgment no. 85 of 1997), having also specified that legislative discretion—which, in general, characterizes all interventions in the modulation of the "institutes of punitive ‘non-custodial’ criminal law” (judgment no. 191 of 2025, point 3.2 of the Considered in Law)—has resulted, in particular, in establishing as a "preliminary condition” for the operation of the institute "that the imposed penalty does not exceed a certain limit” (order no. 475 of 2002), deeming such a choice an expression of that "broad discretion” which the legislature "enjoys in shaping the institute itself” (order no. 296 of 2005), discretion in the exercise of which "the provision of said ‘maximum limit of custodial penalty actually imposed (ordinarily, equal to two years)’ particularly stands out” (judgment no. 208 of 2024).

These findings, however, do not preclude the acceptance of the question raised.

In fact, the circumstance that the requested declaration of unconstitutionality of Article 164, second paragraph, number 1), of the Penal Code, would result in allowing the benefit of conditional suspension even when, as in the case object of the a quo judgment, the limits under Articles 163 and 164, fourth paragraph, of the Penal Code, are exceeded—due to the cumulation of the custodial sentences imposed, respectively, with the previous conviction, subject to rehabilitation, and with the subsequent one—must be considered a consequence intrinsically connected to the characteristics of the institute of rehabilitation.

In fact, the occurrence of rehabilitation entails the extinction of "all” penal effects of the conviction, among which will be—once the automatic preclusion to the granting of conditional suspension, deriving from the previous conviction subject to rehabilitation, is removed by the decision of this Court—also the one according to which the custodial sentence for the crime previously committed cannot have relevance even for the purpose of the cumulation provided for by Articles 163 and 164, fourth paragraph, of the Penal Code.

6.4. – This Court is not unaware that the described "neutralization” of the effects of the conviction subject to rehabilitation might not be irreversible, as the automatic revocation of the rehabilitation already granted could still occur—under the conditions indicated by Article 180 of the Penal Code (which, moreover, requires a ruling declaring it for its ex tunc effects to be produced: Court of Cassation, first criminal section, judgment of June 17–December 30, 2016, no. 55359). An event, moreover, susceptible of materializing even if the crime—non-culpable, and committed within the seven-year period given relevance by the provision just cited—is precisely the one in relation to which the possibility of the suspension of the penalty is being discussed. If such a situation occurs, however, the possibility for the judge called to rule on responsibility for this further crime to proceed with the revocation of rehabilitation, pursuant to Article 683, paragraph 1, second period, of the Code of Criminal Procedure, would remain unaffected, according to which it is the surveillance court that decides on the revocation of rehabilitation, unless it has already been "ordered by the conviction sentence for another crime.” It is therefore evident that in the presence of such a situation, with the effects of the previous conviction reviving—due to the revocation ordered—the preclusion to the granting of suspension resulting from the cumulation of sentences under Articles 163 and 164, fourth paragraph, of the Penal Code, would also apply again.

for these reasons

THE CONSTITUTIONAL COURT

1) declares the unconstitutionality of Article 164, second paragraph, number 1), of the Penal Code, insofar as it precludes the granting of the conditional suspension of the sentence to those who have a prior conviction for a custodial sentence for which rehabilitation has occurred, even in the case where the cumulated penalties exceed the limits under Articles 163 and 164, fourth paragraph, of the Penal Code;

2) declares the question of constitutional legitimacy of Article 178, last clause, of the Penal Code, raised, in reference to Articles 3, 25, and 27 of the Constitution, by the Judge for Preliminary Hearings of the Ordinary Court of Catania, with the order indicated in the heading, to be unfounded.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 28, 2026.

Signed:

Giovanni AMOROSO, President

Roberto Nicola CASSINELLI, Rapporteur

Roberto MILANA, Chancery Director

Filed in the Chancery on March 19, 2026

The anonymized version conforms, in text, to the original