JUDGMENT NO. 34

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 delivered the following

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 3, first paragraph, number 8), of Law of 20 February 1958, no. 75 (Abolition of the regulation of prostitution and fight against the exploitation of others’ prostitution), initiated by the Ordinary Court of Bologna, First Penal Section, in the criminal proceedings against V. R., A. A., and E. G., by order of 17 December 2024, registered under no. 3 of the ordinary register of orders for 2025 and published in the Official Gazette of the Republic no. 5, special first series, of 2025.

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

having heard in the chamber of counsel on 26 January 2026 the Reporting Judge Maria Rosaria San Giorgio;

deliberated in the chamber of counsel on 26 January 2026.

Facts Considered

1.– The Ordinary Court of Bologna, First Penal Section, by order of 17 December 2024, registered under no. 3 of the ordinary register of orders for 2025, raised questions of constitutional legitimacy regarding Article 3, first paragraph, number 8), of Law of 20 February 1958, no. 75 (Abolition of the regulation of prostitution and fight against the exploitation of others’ prostitution), "in relation to the conduct of aiding and abetting prostitution, insofar as it imposes the penalty of imprisonment "from two to six years” instead of "up to six years” or, subsidiarily, insofar as it does not provide for the possibility of mitigating the sanctioning treatment for cases of minor gravity.”

The provision is challenged for "conflict with the principles of equality-reasonableness (Art. 3 of the Constitution) and proportionality of the criminal sanction (Arts. 3, 27, third paragraph of the Constitution)”. The current sanctioning regime, in fact, is alleged to be "unreasonable and disproportionate with respect to the factual circumstances of the specific case as well as to the protective aims for the dignity of the person underlying the offense”.

1.1.– Regarding the facts, the referring Court reports that it is called to judge three individuals charged with the crime of aiding and abetting prostitution, as provided for by Article 3, first paragraph, number 8), of Law no. 75 of 1958. Each of them is accused of having carried out a plurality of distinct actions, constituting a single criminal design, aimed at facilitating the prostitution of several women. Specifically, the referring Court specifies that the criminal actions attributed to each defendant consisted, respectively, in entering into a sham employment contract with a woman to allow her to obtain a residence permit (or its renewal), entering into a lease agreement for an apartment, subsequently used for the exercise of prostitution, entering into a sham marriage with a woman for the purpose of obtaining a residence permit, and – for all three defendants – "habitually accompanying” the women to the places of prostitution, "taking care thereafter to accompany them back” to their respective residences.

Furthermore, two of the defendants are charged with the aggravating circumstance under Art. 4, number 7), of Law no. 75 of 1958, which provides for the doubling of the penalty if the offense is committed to the detriment of multiple persons.

1.2.– Regarding the requirement of relevance, the referring Court emphasizes that the conduct consisting of "accompanying the women to the places of prostitution” assumes a "central role” within the context of the indictments. The defendants carried out this conduct "for reasons essentially traceable to their personal relationship” with the women, without any compensation and at the request of the latter. This highlights an "intent of solidarity,” aimed at protecting the women and preserving their personal safety, "avoiding that they remained alone on the street in the places where the prostitution activity took place.” This would result in an assessment of the facts in terms of "lesser gravity,” while maintaining the established qualification of the crime of aiding and abetting, as resulting from the action of accompanying and returning the women.

The referring Court stresses the impossibility of graduating the punitive response with respect to the described type of conduct, although facilitative of prostitution, but constituting an expression of a claim for protection towards the person "individually and voluntarily” involved in such activity. In the opinion of the referring Court, a different interpretation of the challenged provision would not be practicable, given the "breadth of the statutory language and the stability of living law.” This would result in an "imbalance” concerning the sanctioning consequences, especially considering that the provision in question equates the two distinct conducts of aiding and abetting and exploiting prostitution, "constraining the judgment within the same punitive framework.”

Nor could the unreasonableness of the punitive treatment be mitigated through the usual instruments for sentence reduction. Considering the dignity of the person, as an inalienable asset protected by the criminal provision de qua, the consent of the person involved in the aiding and abetting cannot be deemed relevant, thus rendering inapplicable the mitigating circumstance of culpable contribution by the injured party (under Art. 62, number 5, of the Penal Code). Nor could the application of general mitigating circumstances be of benefit, as, according to the jurisprudence of this Court, they "do not have the function of rebalancing a sanctioning treatment that is disproportionate from the outset.” The same should be said regarding the provision for the particular insignificance of the act (under Art. 131-bis of the Penal Code), the scope of application of which, moreover, would be limited in this case due to the possible nature of aiding and abetting as an "eventually habitual crime,” as it can be configured, as a "single crime,” even through the reiteration of multiple homogeneous actions. Furthermore, the statutory range of the crime de quo would preclude access to the provision for suspension of proceedings with probation (under Art. 168-bis of the Penal Code).

Still concerning relevance, the referring Court notes that the special effect aggravating circumstances, provided for by Art. 4 of Law no. 75 of 1958, would likewise be an expression of a "sanctioning rigor” incompatible with constitutional principles. The aggravating circumstance, of an objective nature, under number 7) of the aforementioned provision (act committed to the detriment of multiple persons), which in this case applies to two of the three defendants, results in the automatic doubling of the penalty for them, effectively precluding the possibility of resorting to the instrument under Art. 131-bis of the Penal Code, even in the extreme case (concerning one of the defendants) where the injured parties are only two. This would result, even more so, in an "inexorably and unjustifiably severe effect.”

1.3.– As to the non-manifest groundlessness, the referring Court invokes Judgment no. 141 of 2019 of this Court, which declared unfounded certain constitutional legitimacy questions concerning "the applicable scope” of Article 3, first paragraph, number 8), of Law no. 75 of 1958, insofar as it criminalizes the recruitment and aiding and abetting of voluntarily and knowingly practiced prostitution. The referring Court recalls that, according to this Court, prostitution is comparable to a form of economic activity, as such subject, pursuant to Art. 41 of the Constitution, to the limits of safety, liberty, and human dignity. The criminalization of aiding and abetting, in other words, has a function of safeguarding human dignity, on the premise that prostitution, even if voluntary, constitutes an activity that degrades and debases the individual and that the asset protected by the criminal provision is precisely human dignity. It is emphasized that, with the aforementioned judgment, this Court "entrusted the trial judge with the task of selecting – based on the principle of offensiveness – conduct devoid of criminal relevance as lacking any potential for harm” (Judgment no. 141 of 2019).

However – the referring Court observes – the application of such a "binary vision (offensiveness - non-offensiveness of the act)” risks, in the face of a provision with a broad scope of application, resulting in a violation of "Arts. 3, 13, and 27 of the Constitution,” particularly regarding the proportionality of the sanctioning treatment. In fact, the challenged provision lacks instruments capable of calibrating the sanctioning consequences to the actual disvalue of the act, especially considering that the conducts of aiding and abetting and exploitation, despite having a "clear difference in terms of capacity to harm personal dignity,” have been equated concerning the applicable penalty. In the opinion of the referring Court, in fact, the conduct of exploitation (resulting in a dual commodification of the body) cannot be equated to "that of someone who limits themselves, for example, to giving a ride to the prostitute” with the intent of protecting her from the dangers of the street: conduct, the latter, which, unlike the former, might result from a clear intent of solidarity with a "protective effect towards the person, their safety, and their dignity.”

Moreover, the legal system offers examples of the conceptual difference between aiding and abetting and exploitation, calibrating the corresponding punitive responses. The referring Court cites the basic offense of aiding and abetting illegal immigration (under Art. 12, paragraph 1, of Legislative Decree of 25 July 1998, no. 286, containing the "Consolidated Text of the provisions concerning the regulation of immigration and rules on the status of aliens”), compared to which the aggravated hypothesis concerning conduct driven by the specific intent to profit from it is differentiated, which is punished with an increase in the penalty from one-third to one-half (Art. 12, paragraph 3-ter, of the same Legislative Decree no. 286 of 1998). In this case – the referring Court stresses – there has thus been a different assessment by the legislator, who deemed it appropriate to graduate the sanctioning treatment based on whether the aiding and abetting conduct is inspired by lucrative aims or not. The lack of such a distinction in the matter of exploitation of prostitution ends up unreasonably equating significantly different hypotheses, not to mention that, in the case of illegal immigration, the aiding and abetting conduct is ancillary to behavior that constitutes a criminal offense in itself (unlike the act of prostitution, which does not constitute a criminal offense either for the person who prostitutes or for the client).

The disproportion of the sanctioning treatment in question also emerges when comparing the offense under consideration with the "general” hypothesis of aiding and abetting, under Art. 378 of the Penal Code, punished with imprisonment up to four years, a penalty significantly lower than that provided for aiding and abetting prostitution, despite, in the opinion of the referring Court, this being "conduct possessing a disvalue certainly higher than that proper” to the latter crime.

When comparing with other "facilitating” offenses, equally affecting personal dignity, the referring Court also cites the crime of minor sexual violence (under Art. 609-bis, third paragraph, of the Penal Code) and the crime of instigation to commit torture (under Art. 613-ter of the Penal Code), emphasizing that the corresponding sanctioning treatments are equivalent to or even lower than that provided for the crime of aiding and abetting prostitution.

The challenged provision would conflict with the principles of personal criminal responsibility and the punitive purpose of rehabilitation, under Art. 27 of the Constitution, due to the described unreasonable disproportion of the sanctioning treatment in the absence of the possibility of concrete modulation of the penalty. In this regard, the referring Court recalls the recent jurisprudence of this Court which, precisely to remedy similar situations, has intervened on the sentencing calculation of various offenses, introducing the possibility for the judge to recognize a mitigation for cases of lesser gravity (Judgments no. 91 and no. 86 of 2024, and no. 120 of 2023 are cited) or directly affecting the statutory minimum penalty (Judgment no. 46 of 2024 is cited). In the opinion of the referring Court, the introduction of a "safety valve” capable of eliminating the challenged disproportion is therefore necessary, through a corrective intervention on the statutory minimum penalty or, subsidiarily, through the introduction of a mitigating circumstance for the act of minor gravity.

2.– In the proceedings before this Court, the President of the Council of Ministers intervened, represented and defended by the Office of the Attorney General of the State, concluding for the inadmissibility or, in any case, for the manifest groundlessness of the questions raised by the Court of Bologna.

On the first point, the State defense observes that the conduct charged to the defendants in the primary proceedings, as described by the order of referral, would be "mere conduct of aid to the persons and not to the prostitution activity, even if indirectly facilitated,” whereas according to the jurisprudence of the Supreme Court, also invoked by this Court in the aforementioned Judgment no. 141 of 2019 – the conduct of aiding and abetting is only verifiable when the agent has favored the prostitution activity and not the person who practices it. The referring Court allegedly failed to consider "these interpretive coordinates” and the consequent "repercussions on the configuration of the criminal offenses themselves,” thereby incurring a "decisive gap” in the reconstruction of the normative framework "upon which the relevance of the alleged question is based.”

On the merits, however, the questions would be manifestly unfounded.

Premising that the discretionary choices of the legislator in criminal matters are subject to review, in constitutional legitimacy review, "only when they exceed into manifest unreasonableness or arbitrariness,” the State defense maintains that, as regards the present offense, no violation of Art. 3 of the Constitution can be found, first of all, concerning the alleged "manifest disproportion in itself of the statutory minimum.” The minimum sanctioning treatment established by the challenged provision, on the contrary, appears "congruous and not disproportionate,” considering that, in the basic form of the crime, and provided the prerequisites exist, neither access to the provision under Art. 131-bis of the Penal Code (exclusion of punishability for particular insignificance of the act), nor the conditional suspension of the sentence, nor "access to most alternative measures” would be precluded. Moreover, in the presence of the aggravating circumstance under Art. 4, number 7), of Law no. 75 of 1958 (act committed to the detriment of multiple persons), the sanction increase would be the inevitable "consequence of the greater disvalue of the act,” no longer classifiable by the judge as of "minor gravity.” In fact, the Attorney’s Office observes, it is not the statutory minimum penalty that is disproportionate, but rather – in the referring Court’s view – the sanctioning treatment resulting from the aggravated forms of the crime. The order of referral, therefore, "should have directed (already abstractly) its challenges towards the sanctioning treatment resulting from the contested aggravating circumstance, and not towards the basic sanctioning treatment.”

In any case, the challenge concerning the disproportion of the penalty applicable to the aggravated hypotheses would also be baseless. In fact, a comparison with the general mitigating circumstances, together with the possibility for the judge to grant the conditional suspension of the sentence or to apply "most of the substitute sanctions,” would still remain practicable.

The challenge alleging a violation of Art. 3 of the Constitution would also be manifestly unfounded concerning the aspect related to the tertia comparationis identified by the order of referral in the different criminal offenses indicated for this purpose. Firstly, the reference to the crime of aiding and abetting, under Art. 378 of the Penal Code, which follows a prior criminal offense, would be "devoid of substance,” whereas the aiding and abetting of prostitution "consists of a material contribution to the commission of the act that the legislator seeks to deter.” Nor would the reference to the penalty provided for lesser sexual violence be valid, given the diversity of the protected legal interests and considering the "very high levels, even greater ones,” that the aggression to personal dignity can reach in aiding and abetting prostitution "compared to minor sexual assaults.” The reference to the crime of instigation to commit torture (under Art. 613-ter of the Penal Code) would be entirely "exorbitant,” since instigation operates "only on a moral level” without materializing any act of facilitation, as provided for in the aiding and abetting of prostitution. The crime of torture, under Art. 613-bis of the Penal Code, would be "even less worthy of [...] comparison,” as the statutory minimum of the latter offense (equal to four years of imprisonment) should rather be compared with the statutory minimum of the basic hypothesis of aiding and abetting prostitution (equal to two years of imprisonment) and certainly not with the aggravated hypothesis under Art. 4, number 7), of Law no. 75 of 1958.

Finally, the challenge under Art. 27, third paragraph, of the Constitution would also be unfounded, given that the "wide statutory range” provided for by the challenged provision allows the criminal judge to adequately calibrate "the sanction to the different disvalue of the act, in harmony with the principle of punitive rehabilitation,” without prejudice to the recourse to the general provisions, established by the Penal Code, which allow for the mitigation of the penalty for cases of minor gravity.

In conclusion, in the view of the State defense, no unreasonable or abnormal sanctioning treatment can be found, either in relation to the basic hypothesis of the crime of aiding and abetting prostitution, or in relation to the aggravated hypotheses thereof, or, finally, in relation to cases of minor gravity.

Considerations in Law

3.– The Court of Bologna, First Penal Section, doubts the constitutional legitimacy of Article 3, first paragraph, number 8), of Law no. 75 of 1958, concerning the conduct of aiding and abetting prostitution, "insofar as it imposes the penalty of imprisonment "from two to six years” instead of "up to six years” or, subsidiarily, insofar as it does not provide for the possibility of mitigating the sanctioning treatment for cases of minor gravity.” The referring Court finds a conflict of this provision "with the principles of equality-reasonableness (Art. 3 of the Constitution) and proportionality of the criminal sanction (Arts. 3, 27, third paragraph of the Constitution).”

The referring Panel emphasizes that the conduct charged to each of the defendants in the main proceedings consisted – "albeit together with others” – "in accompanying the women to the places of prostitution,” and that this conduct has acquired a central role in the context of the indictment. The "intent of solidarity” of the agents, who allegedly pursued the objective of "protecting the injured parties with regard to [...] their personal safety” through the accompaniment actions, in order to "avoid that they remained alone on the street in the places where the prostitution activity took place,” is considered relevant in this regard. In this context, the sanctioning regime established by the challenged provision, in the absence of the possibility of graduating the punitive response in relation to the breadth of its literal wording, appears "unreasonable and disproportionate with respect to the factual circumstances of the specific case as well as to the protective aims for the dignity of the person underlying the offense.”

Furthermore, the fact that the distinction between the two offenses of aiding and abetting and exploiting prostitution does not have any repercussion on the sanctioning level, the legislator having equated the two different conducts under this profile, would determine an unreasonable imbalance.

4.– The objection of inadmissibility of the questions, raised by the Office of the Attorney General of the State for lack of relevance concerning the "inexact reconstruction of the normative framework,” must be examined preliminarily. The order of referral allegedly failed to consider the jurisprudence of the Supreme Court, according to which the act of accompanying the prostitute is to be qualified as mere conduct of assistance to the person, and not also, directly, to the prostitution activity. Conversely – the State defense adds, citing Judgment no. 141 of 2019 of this Court – the crime of aiding and abetting can only be configured when the agent has favored the prostitution activity and not the person who practices it.

The objection is unfounded.

The order of referral – through reference to various rulings of the Court of Cassation – has accounted for the jurisprudence of the Supreme Court which, contrary to the State defense’s view, in the presence of specific conditions, has repeatedly framed the conduct of "accompanying” prostitutes, charged to the defendants, precisely within the hypothesis of aiding and abetting, just like any other activity that is capable of making the exercise of prostitution easier. Based on this preliminary framing, the referring Court reconstructed the abstract figure of the aider and abettor – which, as it observes, based on the reflection of criminal jurisprudence, is characterized by its position of third-partyness relative to the other necessary actors (prostitute and client) and by the fact of carrying out an intermediation activity between supply and demand – and added that, beyond the aforementioned objective requirements, conduct motivated by mere courtesy and respect for the dignity of the prostitute, although accessory to the main conduct, does not appear worthy of sanction.

The referring Court has therefore adequately reconstructed the normative and interpretive framework of reference, regarding the limits of configurability of the crime of aiding and abetting prostitution, showing awareness of the abstract distinction between mere assistance to the person (which constitutes unpunishable accessory conduct) and actual facilitating activity (punishable). Nevertheless, following an assessment of the merits exclusively belonging to it, the referring Court deemed that in the specific case – and precisely on the basis of the recalled jurisprudence of the Supreme Court – a conduct of direct facilitation of prostitution is configured, even if supported by an intent of "solidarity” and "protection” on the part of the agent, such as to require a lesser punitive rigor.

The logical path followed by the referring Court is therefore in no way compromised in terms of reasoning on relevance, hence the groundlessness of the objection raised by the Office of the Attorney General of the State (ex plurimis, Judgments no. 194 of 2021 and no. 30 of 2019).

5.– From a different perspective, the President of the Council of Ministers then noted – albeit within the scope of the defense arguments on the merits of the question – that the alleged disproportion of the sanctioning treatment should be traced back, according to the reasoning developed by the order of referral, not so much to the statutory minimum penalty provided for by the challenged provision (two years of imprisonment), but rather to the doubled penalty resulting from the application of the special effect aggravating circumstance contemplated by Art. 4, number 7), of Law no. 75 of 1958 (act committed "to the detriment of multiple persons”). It was consequently objected that the order of referral "should have directed (already abstractly) its challenges towards the sanctioning treatment resulting from the contested aggravating circumstance, and not towards the basic sanctioning treatment.”

The recalled observation, with which, essentially, the referring Court is accused of an incorrect identification of the norm suspected of unconstitutionality (aberratio ictus), cannot be shared.

In the present case, in fact, the challenges developed by the referring Court are clearly oriented towards the provision of the base penalty for the crime in question (the statutory minimum of two years). The mention made in the order of the penalty increase resulting from the aggravating circumstance under Art. 4, number 7), of Law no. 75 of 1958, serves to corroborate the reasoning on the requirement of relevance of the questions, as the referring Court notes that the aforementioned aggravating circumstance applies to only two of the three defendants and emphasizes that the resulting penalty increase, although linked to the conduct of accompaniment, renders other judgment tools inapplicable in this case (such as the one under Art. 131-bis of the Penal Code) capable of countering or mitigating the sanctioning automatism. In the section dedicated to the requirement of non-manifest groundlessness, the order of referral then focused exclusively on the base penalty, concentrating its observations on the unconstitutionality on this latter (and not also on the penalty as increased due to the aggravating circumstance).

There remains no doubt, therefore, that the referring Court intended to submit to constitutional legitimacy review the provision of the base penalty for the crime of aiding and abetting prostitution, regardless of the possibility that the sanctioning treatment may be aggravated, with the automatic doubling of the penalty, in the event of an act committed to the detriment of multiple persons.

6.– The questions raised by the Court of Bologna are, therefore, admissible, although, regarding relevance, the reasoning in the order of referral involved an apparent contradiction, only implicitly resolved by the referring Court itself. In fact, the premises accounted for the fact that, for all three defendants, the conducts carried out were characterized by "a plurality of distinct actions,” not limited to the mere "habitual accompaniment” of the prostitutes, but also consisting in entering into a lease agreement for an apartment, subsequently used for the exercise of prostitution, or in entering into a sham marriage, or again, in entering into a sham employment contract for the purpose of issuing a residence permit. However, the judgment on the punishability of the act was subsequently developed with reference only to the conduct of accompaniment, carried out in such a way as to guarantee the "personal safety” of the prostitutes and, as such, in the opinion of the referring Court, classifiable as an act of lesser gravity. The order of referral itself then specified that the conduct consisting of accompanying the women to the places where prostitution occurred "assumes a central role in the context of the indictment,” without however explicitly stating the precise meaning of this affirmation.

The review delegated to this Court concerning the requirement of relevance, however, is merely external and does not extend to an independent examination of the elements that led the referring Court to certain conclusions, unless, ictu oculi, its evaluation appears entirely devoid of foundation (ex plurimis, Judgment no. 129 of 2025): a situation that does not occur in this case, given the assessment of "centrality” of the described conduct, which falls under the exclusive review of the referring Court.

7.– On the merits, the questions raised primarily are not founded.

It must be premised that the review requested of this Court must focus on the principle of proportionality of penalties, derivable from the combined provisions of Arts. 3 and 27, third paragraph, of the Constitution (ex plurimis, Judgment no. 197 of 2023), which imposes on the legislator, who, despite having broad discretion in the matter, the limit of non-manifest disproportion of the individual sanctioning choice, a limit considered overcome, as constantly affirmed by the jurisprudence of this Court, only when the severity of the imposed penalty is manifestly disproportionate to the objective and subjective gravity of the crime: "which occurs, in particular, when the legislator sets a minimum measure of the penalty that is too high, thereby constraining the judge to impose penalties that could prove, in the specific case, clearly excessive with respect to its gravity (most recently, Judgment no. 28 of 2022)” (in this sense, among others, Judgment no. 63 of 2022, point 4.1. of the Considerations in Law).

The described application of the principle of proportionality applies not only to legislative activity but also to the daily work of the ordinary judge, called to translate the abstract precepts of the law into commands that exist in the varied reality of concrete cases.

Constitutional jurisprudence has always been particularly attentive to the applicative aspects of the principle of proportionality of penalties, as evidenced, among other things, by the reflection on the crime of aiding and abetting prostitution. In Judgment no. 141 of 2019, repeatedly recalled by the referring Court itself, this Court in fact emphasized the interpretative duty of the judge to bring the criminal offense under consideration, which is characterized by a marked descriptive breadth, within confines of punishability that are consistent, precisely, with the principle of proportionality in its concrete projection: as a general rule, the configurability of the crime must therefore be excluded "in the presence of conduct that, in relation to the specific circumstances, proves to be concretely devoid of any potential for harm” (point 7.3. of the Considerations in Law).

In this perspective, it is not irrelevant that the jurisprudence of the Supreme Court (also recalled by the referring Court) finds a concretely harmful capacity in the conduct of accompanying prostitutes, which is charged to the three defendants in the main proceedings. According to the Court of Cassation, in fact, aiding and abetting must be understood as "activity aimed at facilitating, favoring, or in any case providing a decisive contribution to the exercise of prostitution,” through "any conduct objectively suitable for consciously facilitating the performance of the prostitute’s activity, irrespective of the agent’s personal profit motive, which may even be absent” (thus, among others, Court of Cassation, Third Penal Section, Judgment 13 March-24 September 2025, no. 31842). In this context, the accompaniment of prostitutes, moreover habitual in this case, constitutes "an active conduct functionally oriented towards improving the organizational conditions for the concrete exercise of prostitution” (as recently reiterated by the Court of Cassation, Third Penal Section, Judgment 6 March-9 April 2025, no. 13825), which does not lose its intrinsic disvalue even if characterized, hypothetically, by a protective intent towards the weak subject, since, as has also been stated, "the presence on site to guarantee against violence and threats realizes the necessary protection” for the prostitution activity to take place (Court of Cassation, Third Penal Section, Judgment 29 September-9 November 1999, no. 12633).

Moreover, as already highlighted by this Court, the *ratio legis* of the incrimination that inspired the legislative reform of 1958 – beyond the "motivations of a more strictly ethical and moral nature (of which the parliamentary proceedings also bear ample evidence)” – was precisely to avoid situations of exploitation of the woman's vulnerable condition (a condition, in turn, resulting from individual and social causes, such as "the destruction of family life, insufficient education, need,” "special risks inherent in certain professions,” or the "environmental context” of degraded morality), within a criminal policy framework that considers "[t]he person who sells sexual services [...] potentially a victim” (Judgment no. 141 of 2019, point 4.3. of the Considerations in Law). The criminalization of aiding and abetting, pursuant to Art. 3, first paragraph, number 8), of Law no. 75 of 1958, is therefore instrumental to the objective of protecting the fundamental rights and human dignity of the person who, precisely because of the described situation of vulnerability, falls into the vortex of prostitution. Therefore, the imposition of a penalty even on actions that, although with an intent of "protection,” objectively facilitate the act of paid sexual exchange is coherently inscribed in the described criminal policy framework pursued by the legislator, making it an exercise of discretion to establish both whether a specific minimum penalty is adequate or not to the established social disvalue, and whether the two offenses of aiding and abetting and exploitation of prostitution deserve the same sanctioning treatment.

Therefore, the observations of the referring Court concerning the need for the mere conduct of accompanying prostitutes, in the factual context described by it, to be reclassified as an act of lesser gravity and, consequently, for the legislative provision to be remodeled by eliminating the current minimum penalty (with consequent re-expansion of the general rule extending the duration of imprisonment starting from fifteen days, pursuant to Art. 23 of the Penal Code) cannot be accepted. Likewise, it is not possible to draw a comparison, in line with the order of referral, between the criminal offense under consideration and other criminal offenses regulated by the Penal Code which, as the Office of the Attorney General of the State correctly notes, do not present significant points of contact with the former.

8.– For the reasons set out, the constitutional legitimacy questions raised subsidiarily concerning the lack of provision for the possibility of mitigating the sanctioning treatment for cases of minor gravity are also unfounded.

It must be noted in this regard that the current wording of the criminal norm does not, of itself, exclude the possibility for the judge to make use of other tools provided by the legal system, left to his free assessment, which nevertheless allow for a mitigation of the sanctioning treatment. In this regard, the observations contained in the order of referral regarding the provision of general mitigating circumstances, under Art. 62-bis of the Penal Code, are not pertinent. This provision, in fact, as already observed by this Court, is specifically aimed at allowing a graduation of the penalty with regard to circumstances of the specific case not predictable at the legislative level, also valuing – hypothetically – any aspects of human comprehensibility of the conduct carried out by the defendants (Judgment no. 197 of 2023).

It is true that, as recalled by the referring Court, general mitigating circumstances cannot, of themselves, serve to correct an intrinsic disproportion of the statutory minimums (similarly to what was affirmed by this Court on several occasions, as in Judgment no. 63 of 2022, point 4.6. of the Considerations in Law). However, according to constitutional jurisprudence, this institution performs "the essential function of attributing relevance, for the purpose of sentence calculation, to specific and precise characteristics of the individual act or its author – not typifiable ex ante by the legislator due to their extreme variety, and different from those that already constitute ‘named’ hypotheses of penalty mitigation – which characterize the act as having a lesser disvalue than what the conformity of the conduct to the abstract figure of the crime would initially suggest” (Judgment no. 197 of 2023, point 5.3.2. of the Considerations in Law). In this sense, general mitigating circumstances can be found in "circumstances expressive of lesser offensiveness or lesser culpability of the act,” also taking into account, for example, the "particular intensity and human comprehensibility of the motives that drove the author to commit it,” and also allow the judge to "value all further parameters indicated by Art. 133 of the Penal Code [...] including circumstances subsequent to the crime, or in any case inherent to the person of the author, which indicate a lesser dangerousness thereof, or which in any case render it less deserving of and in need of punishment” (again, Judgment no. 197 of 2023).

Even more fundamentally, even setting aside the considerations just made, it must be reiterated that the legal system provides a wide range of remedies to bring a given sanctioning treatment back to proportionality, should the judge deem that it is not calibrated to the concrete events. In particular, the closing instrument available to the judge, which rises to the level of a true interpretative canon, is that of deeming that the conduct charged to the defendant is not effectively subsumable in the typical description of the crime (in this sense, most recently, Judgment no. 113 of 2025, point 4.3. of the Considerations in Law).

This operation, which constitutes an implementation of the principle of concrete offensiveness, allows the judge "to exclude from the offense – within the limits allowed by the statutory provision – conduct incapable of reaching the threshold of disvalue congenial to the gravity of the statutory framework, thus placing itself in an area where the ‘formal’ integration of the constituent elements of the abstract offense does not correspond, on a ‘substantial’ level, to the integration of the nucleus of disvalue that should characterize that offense, according to the legislator’s own assessment reflected in the measure of the statutory penalty” (again, Judgment no. 113 of 2025).

As already mentioned, the described interpretive-applicative criterion, which the judge is required to observe, has already been valued by this Court, with Judgment no. 141 of 2019, precisely with regard to the crime of aiding and abetting prostitution, where it was clarified, in relation to the applicable discipline, that "the operation of the principle of offensiveness in its concrete projection remains firm, in any case, and therefore the power-duty of the ordinary judge to exclude the configurability of the crime in the presence of conduct that, in relation to the specific circumstances, proves to be concretely devoid of any potential for harm” (point 7.3. of the Considerations in Law).

9.– In conclusion, it must be reiterated that, for the offense under consideration, the breadth of the penalty, which ranges from a minimum of two to a maximum of six years of imprisonment, "allows the judge to fully impose in concreto a penalty proportionate to the gravity of the violation,” as, not by chance, this Court has already had occasion to affirm with one of its oldest rulings on the matter (Judgment no. 119 of 1973). The legislator, through a generic description of the criminal offense, has in fact "preferred to leave the judge a broad power to assess the concrete variety of the act, taking into consideration all the elements indicated by Art. 133 of the Penal Code, including the nature, type, means, object, time, and place, and any other modality of the action” (again, Judgment no. 119 of 1973), it being understood that the concept of facilitating others’ prostitution (as well as, moreover, that of exploitation) presents "a well-defined objectivity, also because it has been acquired for some time in the Penal Code and subjected to long doctrinal elaboration” (Judgment no. 44 of 1964).

Thus, the margins for the ordinary judge to assess the penalty in relation to the gravity of the concrete facts charged as aiding and abetting prostitution remain intact.

10.– The constitutional legitimacy questions must, therefore, be declared not founded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 3, first paragraph, number 8), of Law of 20 February 1958, no. 75 (Abolition of the regulation of prostitution and fight against the exploitation of others’ prostitution), raised, with reference to Arts. 3 and 27, third paragraph, of the Constitution, by the Ordinary Court of Bologna, First Penal Section, 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

Maria Rosaria SAN GIORGIO, Rapporteur

Valeria EMMA, Chancellor

Filed in the Chancellery on 20 March 2026

 

The anonymized version is textually compliant with the original