JUDGMENT NO. 38

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

JUDGMENT

in the constitutional legitimacy review of art. 2, paragraph 1, letter a), of Law no. 134 of September 27, 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as on the matter of restorative justice and provisions for the swift resolution of judicial proceedings), in conjunction with art. 1, paragraph 2, of Law no. 3 of January 9, 2019 (Measures for the contrast of crimes against public administration, as well as on the matter of prescription of the crime and on the matter of transparency of political parties and movements), brought by the Court of Appeal of Lecce, First Criminal Section, in the criminal proceedings against O. D’A., with an order dated July 11, 2025, registered under no. 182 of the ordinary register of appeals of 2025 and published in the Official Gazette of the Republic no. 40, first special series, of the year 2025.

Having reviewed the appearance of O. D’A.;

having heard Judge Rapporteur Francesco VIGANÒ in the public hearing of February 10, 2026;

having heard lawyer Riccardo Mele for O. D’A.;

deliberated in the council chamber of February 10, 2026.

Facts Considered

1.– With an order dated July 11, 2025, registered under no. 182 of the ordinary register of 2025, the Court of Appeal of Lecce, First Criminal Section, raised – with reference to articles 3 and 25, second paragraph, of the Constitution – questions of constitutional legitimacy regarding the combined provisions of art. 2, paragraph 1, letter a), of Law no. 134 of September 27, 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as on the matter of restorative justice and provisions for the swift resolution of judicial proceedings) and art. 1, paragraph 2, of Law no. 3 of January 9, 2019 (Measures for the contrast of crimes against public administration, as well as on the matter of prescription of the crime and on the matter of transparency of political parties and movements), "insofar as they allow – according to the ‘living law’ (Cass. pen. sez. un. 12.12.2024-5.6.2025, no. 20989) – the interpretation that the regulation concerning the suspension of the term of prescription set forth in art. 159, paragraphs 2, 3 and 4, of the Criminal Procedure Code (c.p.), in the text introduced by Law no. 103/2017, applies to crimes committed from August 3, 2017, to December 31, 2019, whereas […] it should be deemed definitively repealed also for such crimes.”

1.1.– Regarding the facts, the referring court reports that it is seized of the appeal brought by an accused party against the judgment that found him responsible for fraudulent insolvency committed, according to the prosecution, on August 22 and 23, 2017.

1.2.– As for the relevance of the questions, the order of referral starts from the judgment of the Court of Cassation, United Penal Sections, December 12, 2024-June 5, 2025, no. 20989, which affirmed the following principle of law: "[T]he regulation concerning the suspension of the term of prescription set forth in art. 159 of the Criminal Procedure Code, in the text introduced by Law no. 103 of 2017, applies to crimes committed during the period of validity of the said law, i.e., from August 3, 2017, to December 31, 2019, not having been retroactively repealed by Law no. 3 of 2019, firstly, and by Law no. 134 of 2021, secondly, whereas for crimes committed from January 1, 2020, the regulation established by Law no. 134 of 2021 applies.”

Applying this principle, the crime attributed to the accused party would not yet be extinguished by prescription. Although more than seven and a half years have passed since its commission, the prescription would not yet have matured, as the period of suspension of one year and six months pursuant to art. 159, paragraph 2, number 1), of the Criminal Procedure Code, in the text amended by art. 1, paragraph 11, letter b), of Law no. 103 of June 23, 2017 (Amendments to the Criminal Code, the Code of Criminal Procedure and the Penitentiary System), must be added to said term. Therefore, according to the referring court, "as a result of this further period of suspension, the term, which would have expired on February 22-23, 2025, as argued by the appellant’s defense counsel, will instead mature on August 22-23, 2026.”

Hence the relevance of the questions, since the grounds for appeal require the Court of Appeal to verify whether the crime being prosecuted is extinguished by prescription.

For these purposes, the referring court would have to apply, in the case at hand, precisely that "living law” – established by the interpretation provided by the aforementioned United Sections judgment no. 20989 of 2025 – whose constitutional legitimacy the referring judge doubts.

1.3.– Before illustrating the merits of the challenges, the referring court reconstructs the applicable legal framework, through an analysis of the legislative interventions that have affected the regulation of the suspension of the prescription term following the rendering of the judgment (originally of conviction) of the first and second instance.

It observes, in particular, that the institution of the suspension of the prescription term as a result of the first or second instance judgment of conviction – introduced by Law no. 103 of 2017 by repealing the original second paragraph of art. 159 of the Criminal Procedure Code and inserting three new paragraphs after the first – has been subject to two subsequent legislative interventions. Firstly, Law no. 3 of 2019 repealed paragraphs three and four and substituted paragraph two of art. 159 of the Criminal Procedure Code, providing for the suspension of the running of the prescription "substantially indefinitely from the rendering of the first instance judgment (any judgment) or the criminal decree of conviction.” Subsequently, Law no. 134 of 2021 repealed the second paragraph of art. 159 of the Criminal Procedure Code (and, with it, the very institution of the suspension of prescription as a consequence of the appeal); it also repealed the fourth paragraph of art. 159 of the Criminal Procedure Code, "as resulting from the effect of the previous repeals and amendments”; it amended art. 160 of the Criminal Procedure Code, "again providing for the criminal decree of conviction as an act interrupting the prescription”; it introduced art. 161-bis of the Criminal Procedure Code, which regulates "the new institution of the cessation of the running of prescription”; finally, it inserted art. 344-bis of the Code of Criminal Procedure, which regulates the new institution of inadmissibility due to the exceeding of the maximum duration terms for appeal proceedings.

1.4.– The court a quo then focuses on the judgment of the United Sections no. 20989 of 2025, from which it quotes extensive passages. It highlights, in particular, that according to this ruling:

– although art. 1, paragraph 2, of Law no. 3 of 2019 limits itself to deferring the entry into force of the new repealing and amending provisions to January 1, 2020, the legislator intended in reality "to establish that all new provisions regarding prescription (first and foremost the indefinite suspension of the prescription term with the rendering of the first instance judgment inserted in art. 159 of the Criminal Procedure Code by that reform) must apply only in relation to crimes committed from January 1, 2020”;

– precisely in this perspective should be identified "the reason for the strong temporal divergence – no less than one year in duration […] – between the time of approval, promulgation and publication of the law and that of the beginning of its effects”: it would have "marked a break with the previous regulation, completely detached from real needs of awareness of the statutory text, thus resulting in a true transitional regime, precluding the comparison between the regulation introduced by it and the previous ones”; the legislator, in other words, intended to postpone the effects of the new provisions in time, "with the aim, not concealed, of adopting in that interval the appropriate reforms necessary to speed up criminal proceedings, so as to avoid, after the introduction of the indefinite suspension of the prescription of the crime upon the rendering of the first instance judgment […], the ordinary event of a cognitive trial susceptible to indefinite duration in subsequent instances”;

– the inapplicability of the regulation of the suspension of prescription provided for by Law no. 3 of 2019 to crimes committed before January 1, 2020, finds "its coherent development in the regulation of art. 2, paragraph 3, Law no. 134 of 2021, clearly coordinated with the innovations introduced by the 2019 law, with particular reference to the introduction of the institution of inadmissibility concerning the same crimes for which the 2019 law had provided for the indefinite suspension of prescription with the first instance judgment”; this provision, limiting the applicability of the newly devised procedural institution only to appeals concerning crimes committed from January 1, 2020, demonstrates "the clear intention to limit the retroactive effects of inadmissibility only to crimes committed from that date on.”

In conclusion, according to the United Sections, the date of January 1, 2020, identifies, in matters of prescription, "the clear cut of continuity with the past.” To this date, "the temporal effectiveness of the operation of the institutions of inadmissibility and the indefinite suspension of the prescription term of the crime upon the rendering of the first instance judgment have synchronized, an institution – the latter – repositioned by Law no. 134 of 2021 in art. 161-bis of the Criminal Procedure Code, with a normative formula not dissimilar from the previous one, although with the insertion in the heading of the provision of a stronger reference to the phenomenon of the cessation of prescription, on the one hand, and with the omission from the norm of the reference (as well as the first instance judgment, also) to the decree of conviction, relocated, in art. 160 of the Criminal Procedure Code, among the acts interrupting the running of the prescription term, on the other hand.”

On the basis of these arguments, the Court of Cassation concluded that "the regulation of the suspension of prescription introduced by Law no. 3 of 2019 does not have retroactive effect and applies only to crimes committed from January 1, 2020; Law no. 134 of 2021 intervened to amend, in the same matter, only the provisions dictated by Law no. 3 of 2019, not those dictated by Law no. 103 of 2017; consequently, Law no. 134 of 2021, in the same matter, in turn, does not exert retroactive effect, applying only to crimes committed from January 1, 2020. Therefore, the provisions dictated by Law no. 3 of 2019 regarding prescription, including the suspension of the running of the relevant term, have taken effect from January 1, 2020.”

1.5.– Such a conclusion would, however, according to the referring court, be "in contrast with art. 3 of the Constitution and with the principle of criminal legality established by art. 25, second paragraph, of the Constitution, which, as is well known, expresses a supreme principle of the constitutional order, which also extends to the legal regime of prescription (Constitutional Court order no. 24/2017).”

In particular, the living law derivable from the ruling of the United Sections would be "in contrast with art. 25, second paragraph, of the Constitution, as it would constitute an interpretation not in line with the literal meaning of the norms, as well as with art. 3 of the Constitution, as it produces a transitional regime not provided for by law and unreasonable, since it generates effects to the detriment of the accused party (in malam partem).”

On the first aspect, specifically, the interpretation would violate the "hermeneutic canon represented, in matters of criminal law, by the prohibition of extensive or analogical interpretations to the detriment of the accused.” This canon, "founded at the constitutional level […] on the principle of legality under art. 25, second paragraph, of the Constitution,” prevents "referring the criminal norm (among which […] are also included those relating to the prescription regime) to situations not ascribable to any of its possible literal meanings” and constitutes "an insurmountable limit with respect to the interpretative options available to the judge when faced with the legislative text” (citing judgments of this Court no. 98 of 2021 and no. 215 of 2008).

According to the referring court, "[T]he reasoning of the United Sections [would be] the result of a double interpretative forcing of a statutory text, which is, in fact, clear in its literal meaning.”

The first forcing concerns the interpretation of art. 1, paragraph 2, of Law no. 3 of 2019, according to which: "[T]he provisions referred to in paragraph 1, letters d), e) and f), shall enter into force on January 1, 2020.” "[U]nlike art. 1, paragraph 15, of Law no. 103/2017,” the referring court notes, "the norm does not provide that the provisions cited apply ‘to crimes committed from January 1, 2020,’ [but rather] that the provisions enter into force from January 1, 2020.” Such a provision would not translate into a specific transitional legal regime, intended to limit the application of the new norms (which could be favorable or unfavorable to the accused) only to acts committed from a certain date onwards – a regime that would be unchallengeable, from a constitutional perspective, except within the limits of reasonableness under art. 3 of the Constitution –; instead, the legislator left the phenomenon to be regulated by the general discipline on the succession of criminal laws over time.

The second forcing concerns "a sort of substantial equivalence of the institution of the suspension of the prescription term,” as amended by Law no. 3 of 2019, "to that of the cessation of the running of prescription under art. 161-bis of the Criminal Procedure Code, as introduced by Law no. 134/2021.” These institutions, on the contrary, are only apparently similar, presenting "significant differences […] not only in the legal name (cessation of the running of prescription instead of suspension), but also, and above all, in the legal regulation.” In the first case, in fact, it concerns an indefinite suspension of the running of prescription following the first instance judgment and the criminal decree of conviction, even in the event of annulment with regression of the proceedings to the first instance; in the second case, a cessation of the running of prescription with the rendering of the first instance judgment (no longer with the criminal decree of conviction), with its possible resumption in case of annulment with regression of the proceedings to the first instance or to an earlier phase.

The referring court then observes that "[L]imiting the repealing effect of art. 159, paragraph 2, c.p., determined by art. 2, paragraph 1, letter a) of Law no. 134/2021, only to crimes committed from 1.1.2020, in the absence of an express transitional provision, as a result of an interpretative forcing of a statutory text, that of art. 1, paragraph 2, of Law no. 3/2019, which, in terms of literal meaning, states the opposite, […] means ‘creating’ through interpretation a transitional regime in malam partem in violation of arts. 3 and 25, second paragraph, of the Constitution.”

More specifically, in a "creative” manner, the entire regulation of the suspension of the prescription term as a result of the first or second instance conviction judgment, provided for by art. 159, second, third and fourth paragraphs, of the Criminal Procedure Code, in the text introduced by Law no. 103 of 2017, has been made to "live again” for crimes committed from August 3, 2017, to December 31, 2019, although the third and fourth paragraphs of the same article were repealed by Law no. 3 of 2019 and the second paragraph, as substituted by Law no. 3 of 2019, was repealed by Law no. 134 of 2021. Such an interpretative operation would be in malam partem, in violation of art. 25, second paragraph, of the Constitution, because it would exclude crimes committed during the period of validity of Law no. 103 of 2017 from the repealing effect of the institution of the suspension of prescription terms produced by Law no. 134 of 2021; and it would also be "unreasonable under art. 3 of the Constitution,” because lacking any reasonable justification.

In reality, according to the referring court, Law no. 134 of 2021 has resulted, on the one hand, in the application of the two new institutions provided for by articles 161-bis of the Criminal Procedure Code and 344-bis of the Code of Criminal Procedure for crimes committed from January 1, 2020; on the other hand, that "for all crimes committed previously, what remained of the institution of the suspension of the prescription term as a result of the judgment […] has been definitively repealed, the regulation of the prescription term [remains] that of the so-called ex Cirielli law, which did not provide for the institution of the suspension of the prescription term as a result of the judgment.” This is because "the regulation of prescription, as provided for by Law no. 251/2005, has never been legally ‘dead’,” as the aforementioned institution, introduced by Law no. 103 of 2017 and subsequently amended by Law no. 3 of 2019, was merely grafted onto it.

Finally, the judge a quo excludes the feasibility of an interpretation consistent with the Constitution, given that that of the United Sections constitutes "an interpretation in malam partem and, however, binding as an authoritative precedent, constituting ‘living law,’ which can only be removed through a constitutional intervention.”

2.– O. D’A., the appellant in the main proceedings, appeared in the proceedings, supporting the validity of the questions.

The party retraces the arguments made by the referring judge, arguing that the United Sections have "intended to limit, distorting their scope, the repealing effect of the second paragraph of art. 159 of the Criminal Procedure Code provided for by Law no. 134 of 2019 [sic: 2021] in the absence of a transitional regulation,” thus providing "not only an exegesis of the statutory text contrary to the literal data,” which would have "a completely different tenor and meaning,” but also "bypassing the chain repealing effects” produced by the succession of Laws no. 103 of 2017, no. 3 of 2019, and no. 134 of 2021.

3.– The President of the Council of Ministers did not intervene in the proceedings.

Legal Considerations

4.– With the order in the heading, the Court of Appeal of Lecce, First Criminal Section, raised – with reference to articles 3 and 25, second paragraph, of the Constitution – questions of constitutional legitimacy regarding the combined provisions of art. 2, paragraph 1, letter a), of Law no. 134 of 2021 and art. 1, paragraph 2, of Law no. 3 of 2019, "insofar as […] they allow the interpretation” outlined by the living law, "based on which the regulation concerning the suspension of the running of prescription set forth in art. 159, paragraphs 2, 3 and 4, of the Criminal Procedure Code, in the text introduced by Law no. 103/2017, applies to crimes committed from August 3, 2017, to December 31, 2019, whereas […] it should be deemed definitively repealed also for such crimes.”

Essentially, the referring Court challenges the living law resulting from the judgment of the United Penal Sections of the Court of Cassation no. 20989 of 2025, according to which the amendments introduced by Law no. 134 of 2021 to the regulation of the suspension of prescription set forth in art. 159, second paragraph, of the Criminal Procedure Code are not applicable to facts committed before January 1, 2020.

According to the court a quo, this interpretation would conflict with the literal tenor of the law and, for this reason, would violate art. 25, second paragraph, of the Constitution. Furthermore, it would lead to an unreasonable result and, therefore, in contrast with art. 3 of the Constitution, by preventing the 2021 reform, as a lex mitior, from applying retroactively to facts committed prior to January 1, 2020, and specifically to facts committed during the validity of Law no. 103 of 2017.

5.– For a better understanding of the issues, a preliminary reconstruction of the normative and jurisprudential framework in which they are situated is necessary.

5.1.– Law no. 103 of 2017 introduced for the first time, in the reformulated second paragraph of art. 159 of the Criminal Procedure Code, two distinct causes for the suspension of the running of prescription, operating, respectively, during the appeal and Cassation proceedings, when the preceding instance concluded with a conviction.

More precisely, the provision stipulated that the running of prescription would remain suspended: a) for a period, in any case not exceeding one year and six months, from the deadline provided for by art. 544 of the Code of Criminal Procedure for the filing of the first instance judgment of conviction, even if rendered on remand, until the pronouncement of the operative part of the judgment that resolves the subsequent instance of judgment; b) for a period, likewise not exceeding one year and six months, from the deadline provided for by the same art. 544 of the Code of Criminal Procedure for the filing of the second instance judgment of conviction, even if rendered on remand, until the pronouncement of the operative part of the final judgment.

5.2.– The subsequent Law no. 3 of 2019, in the context of a broader reform of the prescription regulation, amended the second paragraph of art. 159 of the Criminal Procedure Code, replacing the two causes of suspension provided for in 2017 with a single cause of suspension, operating from the rendering of the first instance judgment (no longer necessarily of conviction), or the decree of conviction, "until the date of enforceability of the judgment that resolves the trial or the final nature of the decree of conviction.”

As a result of this amendment, the prescription term ceased to run, in fact indefinitely, once the first instance judgment was rendered.

Law no. 3 of 2019 itself (published in January of the same year) expressly provided (in art. 1, paragraph 2) that the new provisions – and in particular the amendments to art. 159 of the Criminal Procedure Code resulting therefrom, certainly unfavorable to the accused compared to the regulation provided in 2017 (infra, 8.2.) – would only enter into force on January 1, 2020, and thus at a significantly later date than the usual *vacatio legis*.

5.3.– Law no. 134 of 2021, finally, repealed *tout court* the second paragraph of art. 159 of the Criminal Procedure Code, simultaneously introducing a new art. 161-bis of the Criminal Procedure Code, titled "Cessation of the running of prescription,” which literally states: "[T]he running of the prescription of the crime ceases definitively with the rendering of the first instance judgment. Nevertheless, in the event of annulment leading to the regression of the proceedings to the first instance or to a preceding phase, the prescription resumes its course from the date of the final pronouncement of annulment.”

Concurrently, the 2021 legislator introduced a new art. 344-bis into the Code of Criminal Procedure, which contemplates two distinct causes for the inadmissibility of the criminal action, in the event that, respectively, the appeal proceedings are not concluded within two years, and the Cassation proceedings are not concluded within one year.

Law no. 134 of 2021 provides nothing regarding the temporal effectiveness of its provisions amending the regulation of prescription of the crime. As regards, however, the new regulation of inadmissibility, it is expressly established that it applies "only to appeal proceedings concerning crimes committed from January 1, 2020” (art. 2, paragraph 3), except for the applicability of a longer term for the conclusion of appeal and Cassation proceedings if initiated by December 31, 2024.

5.4.– Faced with a succession of laws amending the prescription regime in such a short period, jurisprudence has questioned what is, today, the regime applicable to crimes committed, in particular, between the entry into force of Law no. 103 of 2017 (August 3, 2017) and December 31, 2019, with specific reference to the suspension of prescription regime provided for, at the time of commission of the act, by art. 159, second paragraph, of the Criminal Procedure Code, as introduced by the 2017 reform.

According to a largely majority orientation in the Court of Cassation jurisprudence, the regulation under Law no. 103 of 2017 remained applicable to the facts in question, as it was the most favorable regulation among all those that succeeded over time, and in any case with respect to the regulation under Law no. 134 of 2021 (thus, albeit following various argumentative paths, among others, Court of Cassation, Fourth Penal Section, judgments of July 10-16, 2024, no. 28474 and June 12-July 4, 2024, no. 26294; First Penal Section, judgment of September 29, 2023-January 22, 2024, no. 2629; Fourth Penal Section, judgment of June 28-September 27, 2023, no. 39170).

According to a minority orientation, instead, the repeal by Law no. 134 of 2021 of the second paragraph of art. 159 of the Criminal Procedure Code would have resulted in the disappearance of any cause of suspension of the running of prescription linked to the pendency of appeal and Cassation proceedings, and therefore also of that introduced by Law no. 103 of 2017. Consequently, Law no. 134 of 2021 would have to be considered more favorable than Law no. 103 of 2017; with the practical effect of rendering the latter law inapplicable to facts committed in the time frame between August 3, 2017, and December 31, 2019, for which – therefore – no cause of suspension of prescription would operate during the appeal instances (thus, for example, Court of Cassation, Third Penal Section, judgment of February 27-May 14, 2024, no. 18873).

The interpretative conflict was resolved by the United Penal Sections of the Court of Cassation, which, with the aforementioned ruling no. 20989 of 2025, enunciated the principle of law according to which "[T]he regulation concerning the suspension of the running of prescription set forth in art. 159 of the Criminal Procedure Code, in the text introduced by Law no. 103 of 2017, applies to crimes committed during the period of validity of the said law, i.e., from August 3, 2017, to December 31, 2019, not having been retroactively repealed by Law no. 3 of 2019, firstly, and by Law no. 134 of 2021, secondly, whereas for crimes committed from January 1, 2020, the regulation established by Law no. 134 of 2021 applies.”

According to the United Sections, the 2019 legislator unequivocally intended to exclude the retroactive effect of the amendments made to the regulation of the suspension of prescription, providing for its application only to crimes committed from January 1, 2020. Law no. 134 of 2021 then intervened to amend, in the same matter, only the provisions dictated by Law no. 3 of 2019, and therefore itself does not exert any retroactive effect, applying only to crimes committed from January 1, 2020. Hence the persistent applicability of Law no. 103 of 2017 to crimes committed during the time frame in which it was in force.

6.– This being established, it must first be observed that the questions raised by the referring Court are relevant, and therefore admissible, as:

– the criminal act attributed to the accused party was allegedly committed on August 22 and 23, 2017, and therefore after the entry into force of Law no. 103 of 2017;

– on the date of the referral order, the prescription term of seven years and six months, resulting from the combined provisions of articles 157 and 161 of the Criminal Procedure Code, had already expired;

– based on the principle of law enunciated by the United Sections, the cause of suspension of the running of prescription provided for by art. 159, second paragraph, of the Criminal Procedure Code, in the version introduced by Law no. 103 of 2017, would nevertheless operate, so – as not yet one year and six months had elapsed since the deadline for filing the first instance judgment – the crime could not be considered prescribed;

– if, instead, the interpretation adopted by the United Sections, constituting living law, were deemed incompatible by this Court with the constitutional parameters invoked, the court a quo could arrive at a different interpretative solution and consider the suspension cause in question inapplicable, with the consequent obligation to acquit the accused party (if not acquitted on the merits) due to the intervening prescription of the crime.

7.– On the merits, the question raised with reference to art. 25, second paragraph, of the Constitution is unfounded.

7.1.– As the referring court rightly recalls, this Court has repeatedly emphasized that the principle of legality in criminal matters (of which the prohibition of analogy is a corollary) "does not allow referring the criminal norm to situations not ascribable to any of its possible literal meanings, and thus constitutes an insurmountable limit with respect to the interpretative options available to the judge when faced with the legislative text” (Judgment no. 98 of 2021, point 2.4. of the Legal Considerations, as well as, in the same sense, more recently, judgment no. 107 of 2025, point 7 of the Legal Considerations).

This for two essential reasons. On the one hand, because "the ratio of the absolute reservation of law in criminal matters, which assigns solely to the law and to acts having the force of law the task of establishing which conduct constitutes a crime […], would in substance be emptied if judges were allowed to apply penalties beyond the cases expressly provided for by law.” On the other hand, because "the prohibition of analogical application of criminal norms by the judge constitutes the obvious counterpart to the constitutional imperative, addressed to the legislator, to ‘formulate norms that are conceptually precise under the semantic profile of clarity and intelligibility of the terms used’ (Judgment no. 96 of 1981),” it being clear that "[T]he subjective guarantee that the determinacy of criminal law aims to ensure would […] also be emptied, if the criminal judge were allowed to assign the text a meaning further and distinct from that which the associate can deduce from its immediate reading” (Judgment no. 98 of 2021, point 2.4. of the Legal Considerations).

An interpretation of criminal law incompatible with the textual data of the law itself would therefore violate the principle of criminal legality under art. 25, second paragraph, of the Constitution: which operates, concurrently, as an interpretative criterion for the ordinary judge (thus, still, judgment no. 98 of 2021, point 2.4. of the Legal Considerations) and as a possible parameter for constitutional legitimacy of norms, resulting from living law, which have drawn meanings from individual criminal provisions that are deemed incompatible with their literal tenor.

7.2.– On the other hand, consistently with the general assumption that prescription constitutes an institution not of procedural law, but of substantive law, the constant constitutional jurisprudence holds that the regulation of prescription is embraced by the guarantee of the principle of legality of crimes and penalties under art. 25, second paragraph, of the Constitution (ex plurimis, among the most recent, judgments no. 2 of 2026, point 9.2. of the Legal Considerations; no. 140 of 2021, point 12 of the Legal Considerations; no. 278 of 2020, point 9 of the Legal Considerations; no. 115 of 2018, point 10 of the Legal Considerations; no. 265 of 2017, point 5.1. of the Legal Considerations; no. 393 of 2006, point 4 of the Legal Considerations). This also with specific reference to the regulation, which is considered here, of the suspension of the running of prescription (Judgment no. 140 of 2021, point 12 of the Legal Considerations).

It follows that the prohibition of interpretations incompatible with the literal tenor of the interpreted provisions, deriving from art. 25, second paragraph, of the Constitution itself, must also apply to the provisions concerning prescription in general, and the suspension of the running of prescription in particular.

7.3.– All this premised, this Court however does not comprehend under what aspect the interpretation of the United Sections challenged here could be deemed incompatible with the literal tenor of the interpreted provisions.

The referring Court considers, in fact, the interpretation of art. 1, paragraph 2, of Law no. 3 of 2019 offered by the United Sections, which read the indication that the relevant provisions "enter into force on January 1, 2020,” as expressing the legislator’s intention to restrict the applicability of those provisions only to facts committed from that date onwards, as a "forcing.” This would be in contrast, according to the referral order, with the literal tenor of the expressions used by the legislator, which would refer merely to the date of entry into force of the reform, rather than to its possible retroactive application to prior facts.

However, irrespective of the fact that the regulation under the second paragraph of art. 159 of the Criminal Procedure Code introduced in 2019 was certainly more unfavorable to the accused parties than that provided for in 2017 – and as such would be inapplicable to facts committed between August 2017 and December 2019 by virtue not only of art. 2 of the Criminal Code, but also of art. 25, second paragraph, of the Constitution itself –, the issue that the United Sections were called upon to resolve concerned not the possible retroactive effect of the 2019 reform (which no one had ever hypothesized), but rather the temporal effectiveness of the amendments made to the regulation by the subsequent Law no. 134 of 2021.

More precisely, the United Sections had to clarify whether the amendments made in 2021 to art. 159 of the Criminal Procedure Code had resulted in the lapse of the cause of suspension of the running of prescription introduced in the second paragraph of the same art. 159 of the Criminal Procedure Code by Law no. 103 of 2017, with an effect extending also to facts committed under the validity of the latter law.

On this specific aspect, Law no. 134 of 2021 was completely silent: so it is not clear what textual data was, hypothetically, ignored or disregarded by the United Sections, in the complex argumentative path that led them to conclude by excluding any effect of the amendments made in 2021 concerning facts committed from August 2017 to December 2019.

Nor does the argumentative step of the United Sections – which the referring court considers a second "interpretative forcing” – according to which the normative content of art. 159, second paragraph, number 1), of the Criminal Procedure Code in the version amended by Law no. 3 of 2019 (and thus the indefinite suspension of prescription after the first instance judgment) would have been in fact transferred, or reallocated, to the new art. 161-bis of the Criminal Procedure Code, titled "Cessation of the running of prescription,” appear to be in conflict with art. 25, second paragraph, of the Constitution. Decisive in this regard is the consideration that the referring court has not indicated any textual data in Law no. 134 of 2021 with which this argumentative step would result in incompatibility. Its challenge boils down to the expression of a dissent – legitimate in itself, but certainly incapable of translating into a constitutional illegitimacy defect of the living law – against the overall interpretative operation carried out by the United Sections.

Nor can this Court agree with the referring court when it argues that the United Sections have improperly "revived” a provision repealed by the 2019 reform – art. 159, second paragraph, of the Criminal Procedure Code, in the version introduced in 2017 –, again in disregard of art. 25, second paragraph, of the Constitution. It is evident, in fact, that the repeal of a provision does not entail its definitive disappearance from the legal system: in criminal law, in particular, the repealed provision continues, as a rule, to apply to acts committed during the time it was in force if it is more favorable than the provision that repealed it, replacing it with a different and more severe regulation. The United Sections acknowledged the repeal of art. 159, second paragraph, of the Criminal Procedure Code, by the 2021 reform; but at the same time they upheld, following an argumentative path certainly not incompatible with the letter of any provision, the applicability of the regulation in force at the time the facts were committed, holding that the supervening regulation intended to confine its effectiveness to facts committed after January 1, 2020.

8.– The second challenge, moreover very briefly argued, concerning the alleged incompatibility of the United Sections’ interpretation with the principle of reasonableness under art. 3 of the Constitution, under the specific aspect of the unjustified derogation from the ordinary retroactivity of the more favorable criminal law, is also unfounded.

8.1.– Constitutional jurisprudence is, in fact, settled in assigning the principle of retroactivity of the more favorable criminal law constitutional relevance, by virtue of art. 3 of the Constitution and – now – art. 117, first paragraph, of the Constitution, in relation to art. 7 of the European Convention on Human Rights, as well as (limited to the scope of application of Union law) articles 11 and 117, first paragraph, of the Constitution, in relation to art. 49, first paragraph, of the Charter of Fundamental Rights of the European Union. The legislator may derogate from this principle only in order to protect countervailing interests prevailing at the constitutional level, according to what Judgment no. 393 of 2006 defined as a "positive assessment of reasonableness” (point 6.3. of the Legal Considerations; in the same sense, in the most recent jurisprudence, judgments no. 123 of 2025, point 4.2. of the Legal Considerations, no. 95 of 2025, point 5.1.5. of the Legal Considerations, and further references therein).

Nothing, therefore, prevents a norm outlined by jurisprudence from being challenged for its conflict with this constitutional principle, where it a) subtracts facts committed under the validity of a previous regulation from a more favorable regulation that entered into force subsequently, and b) there are no reasons of preeminent constitutional relevance to justify this consequence.

8.2.– In the case under examination, however, the first of these prerequisites is already lacking, since the regulation introduced by Law no. 134 of 2021 cannot be considered more favorable than that resulting from Law no. 103 of 2017.

The assessment of whether a specific criminal regulation is more or less favorable – both for the purposes of applying art. 2 of the Criminal Code, and for those of verifying the constitutional sustainability of any derogations from the principle of *retroactivity in mitius* of the subsequent criminal norm – cannot, in fact, be made on the basis of a comparison between its individual provisions, but must necessarily consider the entirety of the provisions that, in their combined effect, affect its application in the concrete case, and particularly the outcome – which is relevant here – of the extinction or non-extinction of the crime due to prescription (in this sense, regarding prescription, Court of Cassation, Third Penal Section, judgment of November 17, 2016-January 24, 2017, no. 3385; Fifth Penal Section, judgments of April 17-June 20, 2014, no. 26801 and October 5-December 6, 2010, no. 43343; in general, on the prohibition of identifying the most favorable regulation by combining provisions of one and the other regulation, with the consequent creation of a "third law,” and on the necessity instead to apply either the one or the other in its entirety, Cass., United Sections, no. 20989 of 2025, and further precedents therein; for an application of this principle by constitutional jurisprudence itself, judgments no. 223 of 2018, points 6.2. and 6.3. of the Legal Considerations; no. 68 of 2017, point 8 of the Legal Considerations).

As recalled above (supra, point 5.3.), Law no. 134 of 2021 did indeed repeal art. 159, second paragraph, of the Criminal Procedure Code – which, in the version amended in 2019, provided for an indefinite "suspension” of the running of prescription after the first instance judgment or the criminal decree of conviction –; but it simultaneously introduced a new art. 161-bis of the Criminal Procedure Code, which now provides for the "cessation” of the running of prescription after the rendering of the first instance judgment.

The practical result, at least with reference to the hypothesis of the first instance judgment relevant in this case, is exactly the same: the prescription term stops, as a general rule definitively, after the first instance judgment. And this result is certainly unfavorable, for the accused party, compared to that foreseen by art. 159, second paragraph, of the Criminal Procedure Code, in the version introduced by Law no. 103 of 2017, which instead established the suspension for only one and a half years of the running of prescription first in the appeal proceedings, and then in the Cassation proceedings.

The conclusion regarding the unfavorable nature of the 2021 reform for the accused party does not change even when considering the "counterbalance” represented by the introduction, in the new art. 344-bis of the Code of Criminal Procedure, of the inadmissibility of the appeal or Cassation proceedings. This is for the decisive and overriding reason that this inadmissibility does not apply to crimes committed before January 1, 2020, and more specifically to those committed under the validity of the regulation of Law no. 103 of 2017.

Therefore, it must be excluded that the interpretation of the United Penal Sections of the Court of Cassation, insofar as relevant to the court a quo proceedings, conflicts with the principle of retroactivity of the more favorable criminal law.

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of art. 2, paragraph 1, letter a), of Law no. 134 of September 27, 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as on the matter of restorative justice and provisions for the swift resolution of judicial proceedings), in conjunction with art. 1, paragraph 2, of Law no. 3 of January 9, 2019 (Measures for the contrast of crimes against public administration, as well as on the matter of prescription of the crime and on the matter of transparency of political parties and movements), raised, with reference to articles 3 and 25, second paragraph, of the Constitution, by the Court of Appeal of Lecce, First Criminal Section, with the order indicated in the heading.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 10, 2026.

Signed:

Giovanni AMOROSO, President

Francesco VIGANÒ, Rapporteur

Valeria EMMA, Chancellor

Filed in the Registry on March 23, 2026

 

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