JUDGMENT NO. 35

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

is 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, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review of Article 7, paragraph 1, of Decree-Law No. 4 of January 28, 2019 (Urgent provisions regarding the citizen's income and pensions), converted, with amendments, into Law No. 26 of March 28, 2019, promoted by the Ordinary Court of Florence, First Criminal Section, in a single-judge composition, in the criminal proceedings against G.E. G., by order of May 12, 2025, registered under no. 109 of the ordinary register of orders for 2025 and published in the Official Gazette of the Republic No. 24, first special series, of the year 2025.

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

Having heard the Reporting Judge Maria Alessandra Sandulli in the private hearing of February 9, 2026;

Deliberated in the private hearing of February 9, 2026.

Facts Considered

1.– By order of May 12, 2025 (reg. ord. no. 109 of 2025), the Ordinary Court of Florence, First Criminal Section, in a single-judge composition, raised questions of constitutional legitimacy, with reference to Articles 3 and 27, third paragraph, of the Constitution, concerning Article 7, paragraph 1, of Decree-Law No. 4 of January 28, 2019 (Urgent provisions regarding the citizen's income and pensions), converted, with amendments, into Law No. 26 of March 28, 2019, insofar as it punishes "with imprisonment from two to six years” instead of "with imprisonment from six months to three years” or, "in the alternative,” "with imprisonment from six months to six years,” anyone who, in order to improperly obtain the so-called "citizen's income” (hereinafter: Rdc, or also: income), makes or uses false statements or documents attesting to untrue facts, or omits due information.

The referring judge reports that they are called to judge a person accused of the crime referred to in the challenged Article 7, paragraph 1, and that the person's liability has emerged during the proceedings. Indeed, it is reported that from the records and documents acquired it appears that the accused, in the single substitute declaration (signed in January 2020), produced with the application to obtain the Rdc, had declared to be the sole member of their family unit, concealing the presence therein of their father, a pension income holder and owner of the dwelling occupied by the unit. In this way, they made it appear that the requirements for accessing the citizen's income were met, receiving eight monthly installments to which they were not entitled (in terms of entitlement even before terms of amount).

The order specifies that the same conclusion would be reached even considering the time of application submission (in April 2020), at which time the accused was already part of another family unit, with respect to which the requirements for benefiting from the said income still did not exist.

Furthermore, the referring judge excludes that the act can be considered of minimal gravity pursuant to Article 131-bis of the Criminal Code.

1.1.– Regarding relevance, the referring judge first states that the crime was completed in April 2020, when D.L. no. 4 of 2019, as converted, was in force, later repealed by Article 1, paragraph 318, of Law No. 197 of December 29, 2022 (State budget for the fiscal year 2023 and multi-year budget for the three-year period 2023-2025). However, "the contested act still constitutes [...] a crime," as – according to what the Supreme Court of Cassation, Third Criminal Section, judgment of January 24 - February 21, 2024, no. 7541, clarified – the formal repeal of the Rdc regulations and, as far as is relevant, of the said criminal provision, would not constitute a case of abolitio criminis under Article 2, second paragraph, of the Criminal Code, but would give rise to a phenomenon of succession of criminal laws over time, falling within the scope of paragraph three of the same article.

Having clarified the above, the referring judge deems the issue relevant because the accused should be subject to "a base penalty close to the statutory minimum (without prejudice to the application of general mitigating circumstances)"; a penalty which is nevertheless considered excessive and disproportionate.

1.2.– That being said, in the opinion of the Court of Florence, the penalty provided for by the challenged norm is, in the first place, intrinsically disproportionate, thus violating Articles 3 and 27, third paragraph, of the Constitution, because its "significantly high statutory minimum" prevents the judge from applying a penalty adequate both to the criminal conduct and to the dangerousness of the perpetrator. As for the first aspect, the referring judge observes that the conduct, although conforming to the typified offense, is characterized by modest harmfulness, since the amounts disbursed in relation to the Rdc benefit are always of a contained amount and constitute a temporary measure. As for the second aspect, it is highlighted that, since the crime in question can materialize even with respect to subjects who would still be entitled to access the Rdc, but in a lower amount, it would also apply to subjects who would actually be in conditions of poverty or risk of marginalization in society and in the labor market, as demonstrated by the very case that gave rise to the constitutional legitimacy question, in which the accused, although lacking the requirements for accessing the said income, is a person in conditions of psychological, social, and economic distress (completely lacking income and personal resources, and therefore entirely dependent, despite advanced adult age, on the parent).

In light of the aforementioned factors, the provision for the crime in question of "imprisonment from two to six years" would therefore be disproportionate in excess and thus unreasonable.

1.3.– The referring judge considers the sanctioning treatment established by the challenged norm manifestly unreasonable and disproportionate also in comparison with that provided for analogous offenses, namely the undue receipt of public funds, pursuant to Article 316-ter of the Criminal Code, and aggravated fraud, pursuant to Articles 640, second paragraph, number 1), and 640-bis of the Criminal Code.

Textually referring to what was stated by the Supreme Court of Cassation, Third Criminal Section, in the judgment of November 9, 2023 - February 21, 2024, no. 7528, the referring judge notes that the legislator, with the challenged penal provision, intended to punish more severely than provided for in analogous cases conduct that might otherwise escape criminal sanctions, as it could not abstractly fall within the scope of application of Articles 316-ter or 640-bis of the Criminal Code.

1.3.1.– In the first place, the order compares the crime provided for by the challenged Article 7, paragraph 1, with the crime, and the related sanction, of undue receipt of public funds, pursuant to Article 316-ter of the Criminal Code, with respect to which jurisprudence of legitimacy deems there to be a relationship of specialty.

The Court of Florence notes, in fact, that, despite the differences existing between the two criminal provisions, the crime of undue receipt of public funds under Article 316-ter of the Criminal Code would constitute a valid benchmark, for sanctioning purposes, with the one under examination.

The codified provision, in fact, also punishes the making of false documents or statements or statements attesting to untrue facts, and the failure to act dutifully, but provides for a threshold of punishability below which the conduct is punished with a pecuniary administrative sanction.

In the opinion of the Florence judge, the presence of this threshold, coupled with the fact that the Rdc is a benefit of significant scope and relatively easy to obtain by a large number of people, could justify the legislator's choice to create a specific criminal offense, but not that of accompanying this new crime with a statutory range decidedly stricter than that provided for by the aforementioned Article 316-ter of the Criminal Code.

1.3.2.– According to the referring judge, the manifest unreasonableness and disproportion of the sanctioning treatment in Article 7, paragraph 1, also emerges from the comparison with aggravated fraud under Articles 640, second paragraph, number 1), and 640-bis of the Criminal Code.

These provisions, while contemplating a stricter sanctioning treatment than that under Article 316-ter of the Criminal Code, delineate, according to "unanimous jurisprudence of legitimacy [...]" aggravating circumstances and not autonomous crimes, and are therefore not excluded from the general rules of balancing under Article 69 of the Criminal Code in case of concurrence with mitigating circumstances. It follows that the greater severity of the sanctioning treatment provided for by Articles 640, second paragraph, number 1), and 640-bis of the Criminal Code would result in practice as "only theoretical." When a mitigating circumstance applies, the penalty assessment must, in fact, take into account the statutory range provided for the crime of fraud under Article 640, first paragraph, of the same Code, i.e., imprisonment from six months to three years, plus a fine.

Conversely, the crime under the challenged Article 7, paragraph 1, presents itself as an autonomous crime, whose statutory minimum, set at two years of imprisonment, could only be minimally reduced by virtue of circumstances.

The referring judge therefore requests that a statutory range between six months and three years of imprisonment be introduced for the said crime, or, at least, given that "the greatest critical issues arise with regard to the statutory minimum," that the current statutory range be replaced with one between six months and six years of imprisonment, which would still allow for a contained penalty for less serious instances.

1.4.– Finally, the Court of Florence, acknowledging that the literal wording of the challenged provision does not seem to allow for an interpretation consistent with the invoked constitutional parameters, observes that, should Article 7, paragraph 1, be declared unconstitutional, an inconsistency could arise with the criminal provision in its paragraph 2, which punishes, with imprisonment from one to three years, the failure to communicate, after the benefit has been recognized, information due and relevant for the revocation or reduction of the benefit itself.

This is because the crime under Article 7, paragraph 1, currently punished more severely than that under paragraph 2, would end up, following the requested declaration of unconstitutionality, characterized by a statutory range that is entirely or partially less severe.

To overcome this critical issue, in the opinion of the referring judge, this Court should resort to the consequential declaration of unconstitutionality, under Article 27 of Law No. 87 of March 11, 1953 (Rules on the establishment and functioning of the Constitutional Court), of Article 7, paragraph 2, of D.L. No. 4 of 2019, as converted, in the part where it provides for a penalty "from one to three years," instead of "up to three years," with the consequent operation of the general rule under Article 23 of the Criminal Code, which sets the minimum duration of imprisonment at fifteen days whenever the law does not expressly provide otherwise.

In the opinion of the referring judge, the unconstitutionality should also be declared consequentially for Article 8, paragraphs 1 and 2, of Decree-Law No. 48 of May 4, 2023 (Urgent measures for inclusion and access to the world of work), converted, with amendments, into Law No. 85 of July 3, 2023, which re-proposed, with regard to the measure of the inclusion allowance, the same content as the provisions of Article 7, paragraphs 1 and 2, of the aforementioned D.L. No. 4 of 2019, as converted.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, requesting that the questions be declared manifestly unfounded.

It is first noted that the objections are based on an incorrect understanding of the institution, as the referring judge would not have considered that the criminal offense in paragraphs 1 and 2 of the challenged Article 7 finds its rationale in the citizen's duty of loyalty towards the institutions from which they receive an economic benefit.

The assertion that the crime in question, due to the amount of improperly paid sums to the individual recipient, would not have serious financial damage value to the State is also erroneous from a socio-criminological point of view.

Premises considered, the State Attorney's Office argues that the first objection regarding the alleged intrinsic disproportion of the sanctioning treatment represents a "mere begging of the question," refuted "by the consolidated jurisprudence of legitimacy (on the crime in question)," which has recognized the reasonableness of the legislative choice. The latter, in fact, would be justified by the need to criminally sanction unlawful acts that do not reach the threshold of punishability provided for by Article 316-ter of the Criminal Code, counteracting, "with an adequate sanction, undue access to a widely applicable benefit."

Regarding the comparison with analogous criminal offenses, the President of the Council of Ministers argues that the comparison with the crimes of aggravated fraud under Articles 640, second paragraph, number 1), and 640-bis of the Criminal Code was "(doubtfully) hypothesized by the referring judge, without any reasoning"; whereas the comparison with Article 316-ter of the Criminal Code would be "irrelevant and ultimately useless." Due to the structural differences and the at least partial heterogeneity between the two criminal provisions, which the referring judge did not consider, the cited Article 316-ter could not have been invoked as a tertium comparationis.

Furthermore, there is no violation of Article 27, third paragraph, of the Constitution, since the statutory minimum of two years, provided for by the challenged Article 7, paragraph 1, allows "any accused person to obtain all legal benefits provided for by the legal system (including the conditional suspension and the non-mention of the conviction)."

Finally, in the opinion of the State Attorney's Office, the manifest unfoundedness of the raised questions also emerges from the overall request addressed, "unfoundedly, if not inadmissible," to this Court, to rewrite the entire sanctioning system, by declaring the consequential unconstitutionality of Article 7, paragraph 2, of D.L. No. 4 of 2019 and Article 8, paragraphs 1 and 2, of D.L. No. 48 of 2023, as converted.

Considered in Law

3.– With the order indicated in the heading, the Ordinary Court of Florence, First Criminal Section, in a single-judge composition, raised questions of constitutional legitimacy of Article 7, paragraph 1, of D. L. No. 4 of 2019, as converted, with reference to Articles 3 and 27, third paragraph, of the Constitution, insofar as it punishes "with imprisonment from two to six years” instead of "with imprisonment from six months to three years” or, "in the alternative,” "with imprisonment from six months to six years,” anyone who, in order to improperly obtain the "citizen's income” (hereinafter: Rdc, or also: income), makes or uses false statements or documents attesting to untrue facts, or omits due information.

The referring judge reports being called to judge a person accused of the crime under the challenged Article 7, paragraph 1, to whom, liability having emerged in the proceedings, "a base penalty close to the statutory minimum (without prejudice to the application of general mitigating circumstances)" should be applied, which is, however, considered excessive and disproportionate.

In the first place, the referring judge complains of the manifest disproportion of the penalty provided for by the challenged Article 7, paragraph 1, as the judge is prevented from adjusting the penalty both to the concrete gravity of the conduct, which, while falling abstractly within the provision, may present a modest disvalue, and to the dangerousness of the perpetrator, which may be reduced or even marginal.

The order emphasizes in this regard that the crime can materialize even if the subject would have been entitled to the income anyway, but in a lower amount, thus ending up also penalizing persons in conditions of economic and social distress, as demonstrated by the concrete case, characterized by a condition of psychological and economic fragility of the accused.

Secondly, the referring judge deems the sanctioning treatment of the challenged provision manifestly unreasonable and disproportionate also in relation to that provided for by analogous provisions, namely the undue receipt of public funds under Article 316-ter of the Criminal Code, and aggravated fraud under Articles 640, second paragraph, number 1), and 640-bis of the same Code.

4.– The questions are relevant, as the referring judge has not implausibly provided grounds for the necessity of applying the challenged provision in the main proceedings, having also correctly accounted for why the challenged Article 7, although repealed, continues to apply. As this Court has already had occasion to clarify (see Judgment No. 54 of 2024, paragraph 2.1. of the Considered in Law, and the jurisprudence of legitimacy cited therein), the repeal of the regulations on the citizen's income and, with it, of the criminal provisions in paragraphs 1 and 2 of the cited Article 7, did not result in an abolitio criminis, the conduct provided for therein remaining criminally relevant.

5.– Before examining the merits of the questions, it is useful to briefly outline the criminal offense provided for by Article 7, paragraph 1, of D. L. No. 4 of 2019, as converted.

The aforementioned provision punishes with imprisonment from two to six years the person who, in order to obtain admission to the Rdc benefit, provides or uses false statements or documents attesting to untrue facts, or omits information relevant to the decision on entitlement.

The unlawful conduct thus consists of making or using false statements or documents attesting to untrue facts, or omitting to provide due information.

The protected legal interest, as noted by the Supreme Court of Cassation, Joint Criminal Sections, judgment of July 13 - December 13, 2023, no. 49686, is not the citizen's duty of loyalty towards the institutions from which they receive the benefit (as also argued by the President of the Council of Ministers in their intervention statement), but must be identified in "the assets of the disbursing entity and, in particular, [in] the specific (and limited) resources intended for the disbursement of the benefit and the pursuit of the public objective underlying it."

It should also be specified that what is outlined in the challenged Article 7, paragraph 1, is a crime of concrete danger – for the completion of which the actual disbursement of the subsidy is not required, as it is perfected upon the realization of the conduct contemplated therein and aimed at pre-establishing the conditions for obtaining the Rdc – and, as can be inferred from the adverb "improperly," a specific intent, which "performs a selective function among criminally relevant conduct and that which is not, excluding from the provision those incapable of endangering the protected interest"; a specific intent that is not limited only to "typifying the motive for the action but also serves to qualify the conduct, constituting, on an objective level, an element of the provision revealing the offense that is intended to be prevented (and punished)" (in this sense, the aforementioned Cass., joint sections criminal, no. 49686 of 2023).

5.1.– To understand the reasons for the legislative choice, the specific features of the Rdc must also be considered.

It is, first of all, necessary to recall that, as this Court has clarified several times, the Rdc, moving along the axis traced by the principles of dignity, equality, and solidarity, " 'although presenting features of a measure to combat poverty, does not resolve into welfare assistance aimed at satisfying a primary need of the individual, but pursues various and more articulated objectives of active labor policies and social integration. The temporariness of the benefit and its conditional nature are coherently linked to this prevailing connotation, i.e., the necessity that precise commitments of the recipients accompany it, defined in Pacts signed by all adult members of the family unit (except for the exclusions under Article 4, paragraphs 2 and 3, of D.L. No. 4 of 2019). Forfeiture of the benefit is also provided for if a single member does not comply with the commitments (Article 7, paragraph 5, of D.L. No. 4 of 2019)' " (Judgment No. 31 of 2025, paragraph 7.1. of the Considered in Law) (Judgment No. 19 of 2022).

This measure was aimed at incorporating the beneficiary family unit into the personalized path aimed at labor market entry and social inclusion, so much so that the objectives of the intervention implied a complex operation of social and labor integration (thus Judgment No. 19 of 2022, paragraph 4 of the Considered in Law; in a similar sense, more recently, Judgments No. 31 of 2025, paragraph 7.1. of the Considered in Law; and No. 54 of 2024, paragraph 5 of the Considered in Law).

In other words, the measure in question established a complex system of active inclusion – based on the principle of conditionality and active commitment of beneficiaries – characterized by a wide range of recipients, who could easily access it, and with a significant deployment of economic resources. Regarding the procedure for the disbursement of the benefit, it should be recalled – as far as is strictly relevant to the present constitutional legitimacy issues – that pursuant to Article 5 of D.L. No. 4 of 2019, as converted, with the application, which could be submitted to post offices, tax assistance centers, or patronato institutes (paragraph 1), the applicant self-certified possession of the requirements for the Rdc (paragraph 5) and if these requirements had already been declared by the family unit for the purpose of the Equivalent Economic Situation Indicator (ISEE), the Rdc application had to be associated by the National Institute for Social Security (INPS) with the corresponding single substitute declaration (paragraph 1).

Under the same article, once the application was received, INPS, within the following five working days, had to verify the possession of the requirements for accessing the Rdc, based on the information available in its archives and those of the administrations holding the data, and had to grant such income no later than the end of the following month (paragraph 3). Furthermore, even if it could suspend the payment of sums pending demographic verifications it deemed necessary to request from the municipalities, this suspension could be ordered for a period not exceeding one hundred and twenty days, after which the Institute would still have to order the payment of the sums (Article 5, paragraphs 4 and 4-quater, of the cited Decree-Law).

6.– Turning to the merits, the question of constitutional legitimacy raised with reference to Articles 3 and 27, third paragraph, of the Constitution, which denounces the intrinsic disproportion of the penalty provided for by the challenged Article 7, paragraph 1, is not founded.

The coordinates of the review are represented by the constant jurisprudence of this Court to the effect that "the discretionary evaluations of penalty assessment are the responsibility of the legislator, with the only limit of sanctioning choices that prove to be arbitrary or manifestly unreasonable (ex multis, among the latest, Judgments No. 91 and No. 46 of 2024, No. 120 of 2023, No. 260 and No. 95 of 2022, No. 62 of 2021)" (Judgment No. 202 of 2025, paragraph 7 of the Considered in Law).

This Court has, however, specified that the "discretion" recognized to the legislator cannot "be equated to arbitrariness." In fact, "Any law resulting in limitations of fundamental personal rights must be rationally justifiable in relation to one or more legitimate objectives pursued by the legislator; and the means chosen by the legislator must not prove manifestly disproportionate to those legitimate objectives" (Judgment No. 46 of 2024, paragraph 3.1. of the Considered in Law).

In other words, the review of the proportionality of the penalty can and must take place within the limits of the non-manifest unreasonableness of the sanctioning choice, only when this is overcome can the latter be deemed arbitrary and, therefore, justify the intervention of this Court.

Furthermore, in order to delineate the constitutional review, a model of review of the "intrinsic" proportionality of the penalty has been developed in which the particularly broad formulation of the challenged provision, capable of including fact patterns significantly diversified in criminological terms and in the degree of disvalue, and the harshness of the statutory minimum (among the most recent, Judgments No. 202, paragraph 7 of the Considered in Law, No. 171, paragraph 8.1. of the Considered in Law, and No. 83, paragraph 4.5 of the Considered in Law, of 2025, as well as No. 91 of 2024, paragraph 3. of the Considered in Law) assume relevance.

6.1.– In light of the recalled jurisprudential coordinates, the penalty of imprisonment from two to six years, provided for by the challenged provision, cannot be considered intrinsically disproportionate.

The provision considered therein is not outlined in broad and indeterminate terms and is therefore not capable of including within its scope of application fact patterns significantly dissimilar in criminological terms and significantly differentiated in the degree of disvalue. The sanctioned conduct, in fact, is strongly typified and therefore presents a limited latitude, as it pertains to the specific procedure for obtaining the citizen's income benefit, and therefore the production or use of false or untrue statements or documents or the failure to act dutifully are placed within the narrow scope of the requirements necessary for access to this measure.

The identified limited nature of the criminal provision serves to exclude the intrinsic disproportion of the penalty provided for by it, without the element of its statutory minimum, considered in isolation, operating to the contrary.

The statutory minimum of two years of imprisonment, provided for by the challenged Article 7, paragraph 1, while constituting a severe sanction for the conduct covered by this provision, cannot be considered in itself unreasonably harsh and therefore manifestly disproportionate.

It can certainly be the subject of criticism from a criminal policy perspective, but such assessments are extraneous to the constitutional review, in which this Court is called not to weigh the merit of the various possible legislative solutions, or whether a greater or lesser severity of the sanctioning treatment is desirable, but only to assess – given the undisputed constitutional relevance that must also be recognized to the legislator's discretion in criminal policy choices, and not only – whether the legislative choice is manifestly unreasonable and therefore conflicts with the Constitution.

It is not by chance that, in the instance where this Court declared the unconstitutionality of the analogous minimum statutory limit provided for the crime of misappropriation under Article 646, first paragraph, of the Criminal Code (Judgment No. 46 of 2024), the reason for the conflict with Articles 3 and 27, third paragraph, of the Constitution was identified not in the "measure" of the penalty, considered in isolation, but in the fact that the reasons why the legislator had abruptly raised the previous minimum statutory limit of fifteen days to two years of imprisonment remained unclear, despite the common experience that the crime of misappropriation includes conduct of highly differentiated disvalue.

7.– Even on the level of external comparison, the minimum custodial sentence provided for by the challenged Article 7, paragraph 1, is not subject to a finding of manifest unreasonableness or disproportion.

As constitutional jurisprudence has repeatedly noted, "the comparison between normative provisions, aimed at verifying the non-manifest unreasonableness of legislative choices [...] must concern homogeneous cases, as the comparison itself would otherwise be unproposable (Judgments No. 120 of 2023, No. 156 of 2020, No. 282 of 2010 and No. 161 of 2009)" (Judgment No. 90 of 2025, paragraph 5.5.1. of the Considered in Law).

Therefore, only "in the face of sanctioning disparities between homogeneous fact patterns not supported by any reasonable justification" can it be considered that the legislative choice amounts to manifest unreasonableness or arbitrariness (Judgment No. 68 of 2012, paragraph 4 of the Considered in Law).

7.1.– As for the comparison with the instances of aggravated fraud – which for reasons of clarity and expository simplicity precedes the assessment of the complaints resulting from the comparison with Article 316-ter of the Criminal Code – it must first be recalled that the provisions of Articles 640, second paragraph, number 1), and 640-bis of the Criminal Code constitute aggravating circumstances of the crime under Article 640, first paragraph, of the same Code (on the nature of aggravating circumstance of the cited Article 640-bis, for all, Supreme Court of Cassation, Joint Criminal Sections, Judgment of June 26 - July 10, 2002, No. 26351) and, therefore, in their comparison with the provision under examination, the elements characterizing the base crime of fraud are relevant.

That being established, the comparison with the aggravated provision under Article 640, second paragraph, number 1), of the Criminal Code, which provides – as far as is relevant here – for the penalty "of imprisonment from one to five years and a fine from Euro 309 to Euro 1,549 [...] if the act is committed to the detriment of the State or another public entity or the European Union," is not capable of demonstrating the manifest unreasonableness and disproportion of the penalty provided for by the challenged provision.

Although there is a coincidence with the crime under Article 7, paragraph 1, of D.L. No. 4 of 2019, as converted, as far as the passive subject is concerned (the State, as far as is relevant here), there are, in the first place, relevant differences regarding the typification of the conduct, since that constituting the aggravated instance of fraud has as its characteristic elements fraudulent inducement to error, through artifices and deceptions, such as to determine unjust profit and detriment to others' assets (i.e., the elements proper to the base crime). The similarity between the two provisions cannot, secondly, be asserted even in relation to the rationale for the criminal offense under the challenged Article 7, paragraph 1, which is to counteract the undue receipt of the Rdc, i.e., a specific measure with the particular characteristics already highlighted, while the aggravated instance of fraud is aimed at counteracting the undue aggression of any constituent element of public assets. This results in a different gradation on the level of disvalue of the various conducts that aggravated fraud under discussion may encompass, with the consequence, relevant for the present purposes, that this broader scope of application also constitutes the reason for the statutory minimum of the related penalty of one year of imprisonment, provided for by Article 640, second paragraph, number 1), of the Criminal Code.

The difference in the typification of conduct and, above all, the heterogeneity on the level of harmfulness of the compared provisions lead, therefore, to deeming the complaint unfounded.

7.2.– The comparison with the aggravated provision under Article 640-bis of the Criminal Code, which provides for the penalty "of imprisonment from two to seven years" "if the act referred to in Article 640 concerns contributions, subsidies, financing, subsidized loans or other disbursements of the same type, however named, granted or disbursed by the State, by other public entities or by the European Communities," also leads to the same conclusion.

Although there is a partial coincidence between this criminal provision and the crime under the challenged Article 7, paragraph 1, concerning the material object of the crime and the protected legal interest – notwithstanding the differences arising from the inclusion in the codified provision of the elements of the base crime of fraud – it is precisely these coinciding elements that justify, moreover significantly, the high statutory range (imprisonment from two to seven years) of the circumstance in question, which is even stricter than that provided for by the challenged Article 7, paragraph 1.

The strict statutory range of the provision under the cited Article 640-bis leads to the exclusion that the latter can represent a suitable comparative model, from which to derive the manifest unreasonableness of the challenged provision.

The argument put forward by the referring judge on this point, namely that the provision under the challenged Article 7, paragraph 1, would be manifestly unreasonable considering that for the aggravated crime under Article 640-bis of the Criminal Code the penalty could in practice be lower, following a potential judgment of equivalence or prevalence of mitigating circumstances, cannot, in fact, be shared.

In the comparison judgment, aimed at assessing the non-manifest unreasonableness of the sanctioning assessment, once the homogeneity between the two provisions compared has been demonstrated – homogeneity which may even be doubted in the present case, since, due to the nature of an aggravating circumstance, the differentiating elements arising from the fact that it repeats those proper to the structure of fraud remain – the comparison must in fact be conducted by reference to the statutory range of the two criminal provisions, as defined by law, because it is this that expresses the disvalue that the legislator has abstractly recognized to those specific conducts.

If, as this Court has already had occasion to clarify, the application of mitigating circumstances is not suitable, as it is only potential, to remedy the constitutional violation inherent in the provision of a manifestly excessive penalty (Judgments No. 46 of 2024, paragraph 3.4. of the Considered in Law, and No. 63 of 2022, paragraph 4.6. of the Considered in Law), conversely, the manifest unreasonableness of a certain statutory range cannot be inferred from the comparison with another, abstractly similar or even more burdensome, which can, however, be mitigated in the concrete case, through the balancing judgment with mitigating circumstances.

Therefore, the conclusion must be that this aspect of the complaint is also unfounded.

7.3.– Finally, the complaint regarding the manifest unreasonableness and disproportion of the penalty provided for by the challenged Article 7, paragraph 1, of D.L. No. 4 of 2019, as converted, which would derive from the comparison with that prescribed by Article 316-ter of the Criminal Code, concerning the crime of undue receipt of funds to the detriment of the State, is also unfounded.

This provision punishes "whoever, through the use or presentation of false statements or documents or documents attesting to untrue facts, or through the omission of due information, improperly obtains, for oneself or for others, contributions, subsidies, financing, subsidized loans or other disbursements of the same type, however named, granted or disbursed by the State, by other public entities or by the European Communities."

The penalty provided is "imprisonment from six months to three years," unless the unduly received sum is equal to or less than 3999.96 euros, in which case only a pecuniary administrative sanction applies.

The rationale for the criminal offense lies in the protection of the assets of the disbursing entity, as well as in the correct management of public resources, and the criminal provision applies "[u]nless the act constitutes the crime provided for by Article 640-bis," i.e., aggravated fraud for obtaining public funds, from which it differs precisely due to the lack of the element of inducing error through artifices and deceptions.

It is a crime of result, which is completed at the time and place where the undue disbursement of money is obtained and requires a generic intent, consisting in the representation and will, on the one hand, of the falsity or untruthfulness of the statements, documents, or attestations, or the lack of due information, and on the other hand, of the undue nature of the disbursement.

7.3.1.– That being established regarding the essential elements of the provision invoked as tertium comparationis, it is clear that a diversity can be found between the latter and that under the challenged Article 7, paragraph 1, concerning the time of completion and the subjective element (crime of concrete danger and specific intent, that under Article 7, paragraph 1, of D.L. No. 4 of 2019, as converted, of result and generic intent, that under Article 316-ter of the Criminal Code), as well as for the provision of the punishability threshold in Article 316-ter of the Criminal Code, below which conduct is punished with an administrative pecuniary sanction.

The two provisions are, however, assimilable with regard to the typification of the conduct, both punishing the production of false or untrue documents or the failure to act dutifully, as well as for the protected interest, i.e., the assets of the disbursing entity.

Despite the noted similarity, the difference in the sanctioning treatment provided for by the two provisions does not appear manifestly unreasonable.

In the first place, and although the observation of the referring judge that Article 316-ter of the Criminal Code may encompass conduct aimed at obtaining state disbursements of significant scope is not unfounded, it must be considered that this provision may also encompass conduct aimed at the undue obtaining of one-off and smaller disbursements; disbursements, that is, which, even if their amount exceeds the punishability threshold provided for by the codified provision, prove to be lower than the average amounts granted for the Rdc.

The latter, in fact, was a periodic contribution granted "for a continuous period not exceeding eighteen months," renewable, after a one-month suspension before each renewal (Article 3, paragraph 6, D.L. No. 4 of 2019, as converted). Furthermore, it consisted of an economic benefit that constituted an "integration of family income" up to the threshold of 6,000 euros per year (increased depending on the members of the family unit), to which could be added an integration of the income of family units occupying a dwelling, up to a maximum of 3,360 euros per year (paragraph 1 of the cited Article 3).

What has been noted, on the one hand, justifies the minimum threshold of six months provided for by Article 316-ter of the Criminal Code and, on the other hand, and consequently, calls into question the comparison made by the referring judge to support the assessment of manifest disproportion of the sanctioning range of the challenged provision.

7.3.2.– If one considers the characteristics of the Rdc recalled above, the different and more severe sanctioning treatment established by the challenged Article 7, paragraph 1, finds a further and not manifestly unreasonable justification in the need to correspond to a widely applicable and easily accessible benefit a sanction with adequate dissuasive effectiveness.

The wide range of Rdc recipients undoubtedly represents an objective circumstance of greater harmful capacity to the interest protected by the criminal provision, on the one hand, because the pool of undue recipients of the citizen's income, not legitimate in the an or the quantum of the measure, could have been vast, with a consequent greater exposure, in terms of distraction or incorrect allocation, of the assets of the disbursing entity; on the other hand, because it could have represented a critical element for controls regarding the possession of the requirements required by the measure, the outcome of which would have occurred, and in fact occurred, at a later time compared to the actual and undue disbursement of the benefit.

In this sense, the challenged provision intended to neutralize also the average time damage to the assets of the disbursing entity resulting from undue access to the Rdc and the disbursement of the latter during the time necessary for the effective verification.

7.3.3.– For all the foregoing reasons, Article 7, paragraph 1, of D.L. No. 4 of 2019, as converted, expresses a precise criminal policy strategy and the legislative choice to reserve a distinct and stricter sanctioning treatment for the specific provision considered than that outlined by Article 316-ter of the Criminal Code is not arbitrary. Therefore, the conclusion must be that this aspect of the complaint is also unfounded.

8.– All the questions raised concerning Article 7, paragraph 1, of D.L. No. 4 of 2019, as converted, must therefore be declared unfounded.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 7, paragraph 1, of Decree-Law No. 4 of January 28, 2019 (Urgent provisions regarding the citizen's income and pensions), converted, with amendments, into Law No. 26 of March 28, 2019, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, by the Ordinary Court of Florence, First Criminal Section, in a single-judge composition, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 9, 2026.

Signed:

Giovanni AMOROSO, President

Maria Alessandra SANDULLI, Reporting Judge

Valeria EMMA, Registrar

Filed in the Registry on March 20, 2026

 

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