JUDGMENT NO. 45

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has handed down the following

JUDGMENT

in the proceedings regarding the constitutional legitimacy of Art. 628, second paragraph, of the Penal Code, initiated by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, in the criminal proceedings against F. R., via the order of January 27, 2025, registered under no. 27 of the 2025 register of orders and published in the Official Gazette of the Republic, no. 8, First Special Series, of the year 2025.

Having examined the act of intervention of the President of the Council of Ministers;

having heard in the chambers of February 23, 2026, the Reporting Judge Roberto Nicola Cassinelli;

having deliberated in the chambers of February 23, 2026.

Considerations of Fact

1.‒ By order of January 27, 2025, registered under no. 27 of the 2025 register of orders, the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, raised a question of constitutional legitimacy with reference to Art. 3 of the Constitution regarding Art. 628, second paragraph, of the Penal Code, insofar as it requires that the violent or threatening conduct be performed "immediately after the theft” rather than "immediately after the taking possession”.

1.1.‒ The referring judge reports to be proceeding via direct summary judgment against F. R., charged with the crime of improper robbery (rapina impropria) because, "immediately after having stolen from the display counters of the supermarket [...] some food products for a total value equal to € 51.96, having hidden them inside his backpack and having walked away crossing the so-called ‘exit without purchases’, in order to secure possession of the stolen goods he used violence first against the security guard A. D.S. and then also against the manager A. Z., who had intervened near the supermarket exit to stop him, subject him to a check and recover any stolen goods, with violence consisting of energetically pushing the supermarket manager A. Z. and, above all, repeatedly striking the security guard [...] hitting his arms, thus causing the latter personal injuries consisting of ‘contusive-distorsive trauma of the left forearm’.”

In reference to this charge, a request for sentencing (patteggiamento) was filed pursuant to Art. 444 of the Code of Criminal Procedure, in the amount of 1 year and 8 months of imprisonment and a fine of 500 euros, conditioned upon the replacement of the custodial sentence with community service.

1.2.‒ Having excluded the existence of causes for non-punishability pursuant to Art. 129 of the Code of Criminal Procedure, the referring judge queries the legal qualification of the criminal act, which forms the basis for the request pursuant to Art. 444 of the Code of Criminal Procedure, "in particular regarding the occurred consummation of the crime of improper robbery or rather its arrest at the level of attempted offense,” and believes that, "in order to arrive at a correct decision in this regard [...] the pronouncement of the Constitutional Court appears necessary regarding the constitutional legitimacy of the provision of Art. 628(2) of the Penal Code in the part in which it requires that the conduct be held ‘immediately after the theft’ rather than ‘immediately after the taking possession’.”

1.3.‒ Having recalled Art. 628, second paragraph, of the Penal Code, which criminalizes the conduct of "anyone who uses violence or threats immediately after the theft, to secure for themselves or others the possession of the stolen object, or to procure for themselves or others impunity,” and reserves for the perpetrator the same sanctioning treatment provided for those who commit the crime of standard robbery (Art. 628, first paragraph, Penal Code), the referring judge observes that, for the purpose of the consummation of the crime of improper robbery, the theft of another's property is sufficient, followed immediately by the violent or threatening behavior of the agent, it not being required "the achievement of possession [...], neither as a prerequisite of the conduct, nor as a subsequent datum.”

1.3.1.‒ In line with the textual datum, the referring judge continues, the consolidated jurisprudence of the Court of Cassation states that, "[u]nlike standard robbery pursuant to Art. 628, paragraph 1, of the Penal Code, for whose consummation – as for theft – the verification of the event of taking possession of another's movable property is necessary, for the consummation of improper robbery it is instead sufficient the mere completion of the theft [...] since the second paragraph of Art. 628 of the Penal Code refers only to the theft and not also to the taking possession,” with the consequence that the attempted offense is configurable "in the case in which the agent, after having performed acts suitable for the theft of another's property, not carried to completion for causes independent of their own will, uses violence or threats to ensure impunity” (thus Court of Cassation, Second Criminal Section, judgment of February 12-April 26, 2021, no. 15584; also cited are Second Criminal Section, judgment of December 17, 2024-January 15, 2025, no. 1790 and Seventh Criminal Section, order of November 12-December 3, 2024, no. 44207).

As for the notion of theft, according to the jurisprudence of legitimacy it must be understood "as a mere apprehension of the good, without the achievement, even for a short time space, of the autonomous availability of the same,” so that the presence, in the places where the action of theft takes place, of video surveillance instruments and personnel assigned to control does not have relevance, "since it is suitable for possibly preventing only the subsequent acquisition of an autonomous availability of the thing itself” (thus Court of Cassation, Second Criminal Section, judgment of October 1-31, 2024, no. 40276; in the same sense, Cass. no. 15584 of 2021).

1.3.2.‒ In light of the regulatory context just outlined, in the case subject to the main proceedings, the crime of improper robbery would have been perfected and, therefore, the qualification of the facts assumed by the parties in the request for application of the penalty would be correct: the accused had used violence against the guard after having stolen the food items, while being stopped immediately after the exit.

This conclusion, the referring judge observes, would no longer be sustainable if one were to intervene on the challenged provision in the hoped-for sense, replacing the expression "immediately after the theft” with the expression "immediately after the taking possession”.

Indeed, given that the apprehension of the goods by the accused had been observed by the supermarket security personnel, capable of intervening at any moment, the goods had not left the sphere of control of the rightful owner and the accused had not achieved their availability, not even temporarily. At the moment of the violent conduct, the accused had only carried out acts suitable for taking possession, not carried to completion due to the intervention of the guard, and, therefore, the improper robbery would have stopped at the level of the attempt.

2.‒ The referring judge assumes that the legislator’s choice to connect the conduct of violence or threats to the theft rather than to the taking possession would violate Art. 3 of the Constitution, "in particular in relation to the different discipline laid down for improper robbery compared to the crime of standard robbery.”

2.1.‒ The crime of standard robbery is consummated only on the condition that the author of the violent or threatening conduct achieves the exclusive domain of another's property, even if temporarily, and, in the event that the author has not managed to achieve such possession, it is configured only as an attempted offense.

Differently, in the analogous situation with an inverted sequence, in which the patrimonial aggression precedes that to the person, as delineated by the second paragraph of Art. 628 of the Penal Code, "the improper robbery is [...] already consummated where the violent conduct is held after the simple theft of the good, without the taking possession being necessary.”

Such misalignment, the referring judge observes, would not be at all negligible if one considers that, with equal absence of completed patrimonial injury, the standard robbery is only attempted, while the improper robbery is consummated, with all the consequences that derive from it on the applicable sanctioning treatment.

2.2.‒ The referring judge recalls the rulings of this Court that have examined the two cases of robbery in comparison.

2.2.1.‒ Judgment no. 190 of 2020 deemed the equalization of the sanctioning treatment constitutionally legitimate, having identified "the qualifying trait” of the provisions merged into Art. 628 of the Penal Code in the "recourse to a violent or threatening conduct in the same context – of time and place – of a patrimonial aggression,” which serves to justify the construction of a complex crime, of which multiple acts that would constitute a crime in themselves are constituent elements (or aggravating circumstances). Although acknowledging that in the two cases of robbery there is no perfect overlap between the constituent elements of the crime, beyond the differently preordained sequence, the cited ruling, the referring judge continues, stated that, by reason of the "fundamental ratio of the crime of robbery (even in the improper form) as a complex crime, it is understood how the legislator has not assigned relevance, on the level of statutory penalty values, to the differential element consisting of the failure to establish a possessory situation in the agent: an element that subtracts nothing from the common and essential nucleus of the forms of patrimonial aggression through violence or threats.”

2.2.2.‒ In similar terms, the referring judge continues, this Court expressed itself in order no. 111 of 2021 and in judgment no. 260 of 2022 and, more recently, in judgment no. 86 of 2024, which declared the constitutional illegitimacy of Art. 628, second paragraph, of the Penal Code, in the part in which it did not provide for a reduction of the penalty for a minor offense. In this last ruling, the structural homogeneity of the different forms of robbery was remarked to such an extent as to have extended, consequentially, the declaration of constitutional illegitimacy to Art. 628, first paragraph, of the Penal Code, which was not subject to challenge.

2.3.‒ The reconstruction just recalled, which enhances the common fundamental ratio and the structural homogeneity between the two robbery cases, would be incompatible with the discipline laid down in relation to the moment of consummation of the crime, making the requested intervention necessary.

Indeed, the referring judge excludes being able to arrive at a constitutionally compliant interpretation of the challenged provision, taking into account the clear and unequivocal literal tenor of the same, in adherence to which the constant interpretation of the jurisprudence of legitimacy has been formed.

The hoped-for intervention, moreover, would not be hindered by the observation that, in one of the forms of improper robbery, the agent operates for the specific purpose of securing for themselves or others the possession of the stolen thing: if the necessity of taking possession, even if only temporarily, were affirmed for the purposes of the consummation of the improper robbery, the specific intent (dolo specifico) would have as its object the consolidation of the situation of possession.

3.‒ With an act filed on March 10, 2025, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, to ask that the question be declared unfounded.

3.1.‒ After having reviewed the event subject to the main proceedings, the state defense observes that, in the referring judge's thesis, the question would find backing in the interventions of this Court which have enhanced the analogies between the two robbery cases, in particular the common ratio of punishing more severely the contextual aggression to the patrimony and to the person (judgments no. 86 of 2024, no. 260 of 2022, no. 190 of 2020; order no. 111 of 2021).

Precisely in light of this ratio, the referring judge deems it unreasonable that, in the absence of taking possession, when the injury to another's possession is not fully verified, standard robbery is only attempted, while so-called improper robbery is already consummated.

3.2.‒ According to the intervener, however, the referring judge would not have taken into account the nature of the complex crime of robbery, which, in the form of so-called improper robbery, consists of the same conducts as standard robbery, with the difference that the temporal sequence is inverted and therefore the finalistic direction of the violent or threatening behavior is different.

A prerequisite of both cases is that the agent does not have possession of the thing they intend to steal, and the role assumed by the conduct of violence or threats to the person is central, which in the case of standard robbery precedes the dispossession and is functional to it, while in the case of improper robbery it follows the dispossession, so that the provision of identical sanctioning treatment avoids any charge of unreasonableness.

3.3.‒ The State Attorney’s Office emphasizes, then, that in the case provided for by Art. 628, second paragraph, of the Penal Code, the securing for oneself or others the possession of the stolen thing, or procuring for oneself or others impunity, do not constitute events of the crime, but subjective elements.

In improper robbery, in fact, to the general intent (dolo generico), consisting of the awareness and will to use violence or threats, after the illicit theft of the thing, is added the specific intent of the finalization of the violence, or of the threat, toward the possible double objective of the definitive taking possession of the thing or of impunity.

It would logically follow that improper robbery is consummated even in the absence of definitive taking possession or impunity, it being sufficient that the subject has acted for the purpose of achieving one or the other goal.

3.4.‒ In any case, according to the intervener, on the themes proposed by today's referring judge, this Court had already expressed itself in judgment no. 190 of 2020, in which it was clarified that the failure to establish a possessory situation in the agent "subtracts nothing from the common and essential nucleus of the forms of patrimonial aggression through violence or threats,” all the more so since "the lack of a new situation of possession is only eventual, because the improper robbery remains such [...] even when the agent achieves, both the taking possession of the thing, and impunity, arriving at a full, new and undisturbed condition of possession.” The disvalue of the fact, in the crime of robbery, is therefore not conditioned by the "definitive” completion of the aggression, "but by the contextuality and the finalism of the two essential components of the typical conduct” (point 6.2. of the Legal Considerations).

3.5.‒ The State Attorney’s Office dissents, finally, from the argument spent by the referring judge to support the uncertainty regarding the legal qualification of the fact subject to challenge in the main proceedings – whether consummated or attempted improper robbery – because the activity of theft of the merchandise had been carried out under the constant control of the supermarket's surveillance personnel. In this regard, the jurisprudence of legitimacy is recalled, according to which the attempt of improper robbery is configurable only in the case in which the agent, after having carried out acts suitable for the theft of another's thing, not carried to completion for causes independent of their own will, uses violence or threats against those who try to hinder them, to ensure impunity (Court of Cassation, United Criminal Sections, judgment April 19-September 12, 2012, no. 34952).

4.‒ In conclusion, there would not be the alleged violation of Art. 3 of the Constitution in relation to the sanctioning treatment of improper robbery (Court of Cassation, Second Criminal Section, judgment April 16-29, 2015, no. 17827 is recalled), resulting in the reading of the abstract case proposed by the referring judge being unfounded.

Considerations of Law

5.‒ With the order indicated in the epigraph, the Court of Florence, First Criminal Section, sitting as a single judge, raised, with reference to Art. 3 of the Constitution, a question of constitutional legitimacy of Art. 628, second paragraph, of the Penal Code, in the part in which it requires that the violent or threatening conduct be held "immediately after the theft,” rather than "immediately after the taking possession.”

5.1.‒ The referring judge's doubt concerns the structure of the crime of so-called improper robbery, as delineated by Art. 628, second paragraph, of the Penal Code, and starts from the comparison with standard robbery, referred to in the first paragraph of the same Art. 628 of the Penal Code.

The two forms of robbery would differ with reference to the threshold of consummation, which would be further back in so-called improper robbery, with repercussions on the configuration of the attempted offense and, ultimately, on the unreasonableness of the subjection to the same sanctioning treatment, in the face of different levels of aggression against the protected good.

Improper robbery, observes the referring judge, is consummated with the theft of another's thing, followed by violent or threatening conduct, without the need for taking possession, not even momentarily, by the agent; differently, standard robbery, in the absence of taking possession, does not reach the threshold of consummation, remaining at the level of an attempt.

5.2.‒ The question has immediate repercussions in the main proceedings, in which the proceedings are against F. R., charged with the crime of improper robbery, because, "immediately after having stolen from the display counters of the supermarket [...] some food products [...], having hidden them inside his own backpack and having walked away crossing the so-called ‘exit without purchases’, in order to secure possession of the stolen merchandise, he used violence against first the security guard A. D.S. and then also against the manager A. Z.,” both of whom had intervened to stop him, subject him to a check, and recover any stolen goods.

5.3.‒ The referring judge believes that the mere theft, having occurred moreover in a context subject to video surveillance, should be subsumed in the attempted offense.

In the impossibility of adopting a constitutionally compliant interpretation – which would conflict with the textual data and the relative living law – he asks this Court to intervene on the challenged provision, for the purpose of aligning the requirements for the consummation of improper robbery to those provided for standard robbery, even in the inverted sequence, providing that the violence or threat follows "immediately after the taking possession” of another's thing. This would allow him to requalify the fact contested in the main proceedings in the manner of an attempted improper robbery.

6.‒ There are no preliminary profiles of inadmissibility detectable ex officio, nor has the intervening State Attorney General’s Office formulated exceptions in this sense.

The question is, therefore, admissible, but it is unfounded.

7.‒ The examination of the merits must start from the recognition of the regulatory framework and the jurisprudence of this Court, which, as also recalled by the referring judge, has examined multiple times in recent times the compatibility of Art. 628, second paragraph, of the Penal Code, with multiple constitutional parameters, in particular with Art. 3 of the Constitution, in the comparison with the case of standard robbery, given the provision of the same sanctioning treatment.

The crime of robbery has, in fact, experienced a progressive hardening of the sanctioning treatment, which has mainly affected the minimum statutory penalty of imprisonment: originally determined at three years, subsequently increased to four years by Art. 1, paragraph 8, letter a), of Law no. 103 of June 23, 2017 (Amendments to the Penal Code, the Code of Criminal Procedure and the Penitentiary System), and further increased to five years by Art. 6, paragraph 1, letter a), of Law no. 36 of April 26, 2019 (Amendments to the Penal Code and other provisions regarding self-defense). This has caused the re-emergence of theoretical discussions and contrasts, moreover never entirely resolved, between doctrine and jurisprudence regarding precisely the case of improper robbery, which is structured according to an inverted sequence compared to standard robbery, not entirely overlapping as regards the constituent elements.

In fact, Art. 628 of the Penal Code, in the first paragraph, configures the crime of standard robbery in the following terms: "[a]nyone who, to procure for themselves or others an unjust profit, by means of violence to the person or threat, takes possession of another's movable thing, stealing it from those who hold it, is punished with imprisonment from five to ten years and with a fine from 927 euros to 2,500 euros”; in the second paragraph it defines improper robbery, providing that "[t]he same penalty is subject to anyone who uses violence or threats immediately after the theft, to secure for themselves or others the possession of the stolen thing, or to procure for themselves or others impunity.”

7.1.‒ The common element to the two forms of robbery, according to the reconstruction now risen to living law, is given by the use of a violent or threatening conduct in the same context of patrimonial aggression: it is, in fact, a complex crime, in which conduct that would constitute autonomous crimes (theft, private violence, threat) are unified. The case defined "improper” is characterized in that, contrary to that delineated in the first paragraph of Art. 628 of the Penal Code, violence or threats are exercised not to steal another's movable thing, but only once the theft is completed, in the immediacy of this, and with a different purpose: to secure the possession of the thing, or to guarantee the impunity of the author of the fact or of third persons. The contextual aggression to the person and to the patrimony happens, therefore, according to a sequence inverted compared to standard robbery.

7.2.‒ With the United Criminal Sections judgment no. 34952 of 2012, the Court of Cassation confirmed the traditional and majority orientation, according to which improper robbery is consummated with the theft, in accordance with the ratio of the incrimination and the structure of the specific intent ‒ which demands a finalism of the violent or threatening conduct oriented toward possession or impunity ‒ without, however, imposing that the goal be actually achieved.

This allows for the belief that interaction between the general provision of Art. 56 of the Penal Code and that particular of the second paragraph of Art. 628 of the Penal Code is possible: the incompleteness typical of the attempt can concern, in the complex crime, one or more of the elements necessary for the consummation of the crime.

In conclusion, according to living law, there is an attempt at improper robbery if the agent resorts to violent or threatening conduct when the action aimed at stealing the res is interrupted, with the intent of achieving its possession, despite the disturbance, or to guarantee oneself impunity. If, instead, the theft is completed before the violence or threat, the crime is consummated, independently of the success of the action aimed at consolidating the possession of the thing or at procuring the agent impunity.

The interruption of the conduct of theft can also happen in standard robbery and even in that hypothesis the configurability of the attempt is not doubted.

8.‒ This Court, as already signaled, has examined the two cases in comparison, in particular in judgment no. 190 of 2020.

In that case, the referring judges had remarked the diversity between standard and improper robbery both under the subjective profile of the criminal conducts, and in reference to the threshold provided for the consummation of the crime, further back in improper robbery and, as such, productive of a less serious injury to the good subject to protection, whence the unreasonableness of the subjection of improper robbery to the same sanctioning treatment provided for standard robbery.

On the specific profile again highlighted today, of the "anticipation” of the consumptive moment, the cited judgment observed that "[t]he argument regarding the requirements for the consummation of improper robbery, strictly connected to the theme of the configurability of the crime in the attempted form, has been the object of ample debate, and also of divergences, in jurisprudence and in doctrine. In the living law, consolidated following a ruling of the United Sections of the Court of Cassation regarding the admissibility of the attempt (judgment April 19-September 12, 2012, no. 34952), it is now recognized that the crime is consummated following the theft of another's thing, without it being necessary the establishment of a new and autonomous situation of possession in the agent (lately, ex multis, Court of Cassation, Second Criminal Section, judgment February 22-March 8, 2017, no. 11135). Moreover, the literal data assists in the same sense: Art. 628 of the Penal Code distinguishes between theft and taking possession, including in the first paragraph both factors as constituent elements on the material level, and indicating instead the taking possession, in the second paragraph, as an objective ‘to be secured’ by means of violent or threatening action, implemented ‘immediately after the theft’” (point 6.2. of the Legal Considerations).

Although having taken note of the non-perfect overlap between the constituent elements of the two crimes, this Court deemed "unfounded [...] the claim that such a difference imposes a different sanctioning treatment of the two cases, especially because the legislative option, which instead equates it, is certainly not qualifiable as the fruit of manifest unreasonableness, the only one that would justify the intervention of this Court (ex plurimis, judgments no. 212, no. 155, no. 115, no. 112, no. 88 and no. 40 of 2019, as well as order no. 66 of 2020)” (again, point 6.2. of the cited judgment).

8.1.‒ It is true that today's referring judge does not reason in the aforementioned perspective – that is, they do not assume the unreasonableness of the provision of identical sanctioning treatment for both robbery cases – and contests, instead, the sequence provided by the legislator in improper robbery, which connects the violent or threatening conduct to the theft and not already to the taking possession, on which they hope for the intervention of this Court. Nevertheless, their arguing regarding the alleged misalignment of the two robbery cases with respect to the consumptive moment and, therefore, to the theme of the configuration of the attempted case, in place of that consummated, remains anchored to the assumption that, in the absence of taking possession, the patrimonial aggression would be less serious.

Such reconstruction cannot be shared.

9.‒ Reiterated that, by constant orientation of this Court, the definition of the abstract cases of crime is reserved to the discretion of the legislator, whose choices are challengeable only where they exceed into manifest unreasonableness or arbitrariness (ex plurimis, judgments no. 260 of 2022, no. 62 of 2021 and no. 136 of 2020), in the case under examination the extremes of the requested intervention do not occur.

9.1.‒ As highlighted by judgment no. 190 of 2020, and reiterated in the subsequent judgment no. 260 of 2022, the two forms of robbery are united by the essential element of the use of violence or threat in a context of patrimonial aggression, not by the degree of implementation of the aggression itself.

In the logic of the complex crime, the definition of the abstract case of improper robbery, which sees the taking possession as the last and only eventual segment of the sequence, and is therefore consummated with the theft, does not result in being manifestly unreasonable, being on the contrary consistent with the already recalled ratio of the incrimination (common to standard robbery).

The taking possession, in improper robbery, may not materialize at all, whether by choice of the agent, who uses violence or threats for the sole purpose of guaranteeing themselves impunity, or by intervention of third parties, who prevent its realization, and in all these eventualities it is not doubtful that one is in the presence of hypotheses of consummated improper robbery.

The attempted case remains configurable in the terms indicated by the already recalled living law, shared by this Court, whenever the agent, immediately after having carried out acts suitable for the theft of another's thing, not carried to completion for causes independent of their will, uses violence or threats.

9.2.‒ In this perspective, the context in which the theft occurs is irrelevant, whether subject or not to control by the rightful owner, possibly by means of video surveillance and security personnel. As clarified by the jurisprudence of legitimacy, the theft, as a mere material apprehension of another's thing, without the achievement of the power to dispose of it in autonomy even for a minimum time, is not prevented by the control of the rightful owner (Cass., no. 40276 of 2024 and no. 15584 of 2021).

10.‒ Therefore, the denounced unreasonableness of Art. 628, second paragraph, of the Penal Code does not exist, in the part in which, differently from what is provided for in the first paragraph for standard robbery, it does not require, for the purposes of the consummation of the crime, the taking possession of another's thing.

11.‒ In light of what has been set out, the question must be declared unfounded.

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares the question of the constitutional legitimacy of Art. 628, second paragraph, of the Penal Code, raised, with reference to Art. 3 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the epigraph, to be unfounded.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on February 23, 2026.

Signed:

Giovanni AMOROSO, President

Roberto Nicola CASSINELLI, Author

Valeria EMMA, Chancellor

Deposited in the Chancellor's Office on March 31, 2026

The anonymized version conforms, in the text, to the original