ORDER NO. 48
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
ORDER
in the proceedings concerning the constitutionality of Articles 168-bis, first paragraph, of the Penal Code, 550, paragraph 2, of the Code of Criminal Procedure, and 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Act of laws regarding the regulation of narcotic and psychotropic substances, prevention, treatment and rehabilitation of related drug dependency states), initiated by the Ordinary Court of La Spezia, Criminal Section, sitting as a single judge, in the criminal proceedings against H. B., by order of March 13, 2025, registered under no. 199 of the 2025 register of orders and published in the Official Gazette of the Republic no. 43, first special series, of the year 2025.
Having heard, in the chambers on March 12, 2026, the Reporting Judge Francesco Saverio Marini;
decided in the chambers on March 12, 2026.
Considering that, by order of March 13, 2025 (reg. ord. no. 199 of 2025), the Ordinary Court of La Spezia, Criminal Section, sitting as a single judge, raised questions of constitutionality regarding Articles 168-bis, first paragraph, of the Penal Code, 550, paragraph 2, of the Code of Criminal Procedure, and 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Act of laws regarding the regulation of narcotic and psychotropic substances, prevention, treatment and rehabilitation of related drug dependency states), with reference to Articles 3 and 27, third paragraph, of the Constitution, insofar as they exclude the offense of minor drug dealing from the scope of application of the suspension of proceedings with probation (messa alla prova);
that the referring judge reports conducting a direct summary trial (giudizio direttissimo) for the aforementioned offense, following the validation of the defendant’s arrest in flagrante, who – prior to the opening of the trial – submitted a request for probation;
that, regarding relevance, the court a quo considers that, in the present case, all conditions are met under which, pursuant to Art. 464-quater of the Code of Criminal Procedure, the benefit may be granted;
that, however, Art. 4, paragraph 3, of Decree-Law no. 123 of September 15, 2023 (Urgent measures to combat youth distress, educational poverty, and juvenile delinquency, as well as for the safety of minors in the digital sphere), converted, with amendments, into Law no. 159 of November 13, 2023 (the so-called Caivano Decree), increased the maximum statutory limit of the custodial sentence for the offense of minor drug dealing from four to five years of imprisonment, thereby precluding the defendant from accessing probation;
that, regarding the non-manifest groundlessness, the referring judge – referencing the order of the Ordinary Court of Padua (registered as reg. ord. no. 149 of 2024), upon which this Court has already ruled with Judgment no. 90 of 2025 – argues that Articles 168-bis, first paragraph, of the Penal Code, 550, paragraph 2, of the Code of Criminal Procedure, and 73, paragraph 5, of the Consolidated Act on Narcotic Substances violate Art. 3 of the Constitution, on the grounds of unreasonableness and disparity of treatment;
that Article 168-bis, first paragraph, of the Penal Code restricts the institution of probation to cases where proceedings are held "for offenses punishable solely by a pecuniary penalty or by a custodial penalty not exceeding a maximum of four years, either alone, combined with, or as an alternative to a pecuniary penalty, as well as for the crimes indicated in paragraph 2 of Article 550 of the Code of Criminal Procedure,” which includes incitement to the illicit use of narcotic substances as provided for by Art. 82, paragraph 1, of the Consolidated Act on Narcotic Substances;
that, therefore, the suspension of proceedings with probation may be ordered for this specific criminal offense;
that, since it involves conduct infringing upon the same legal interest protected by the provision criminalizing minor drug dealing, which is, moreover, sanctioned with a higher statutory penalty both in its minimum and maximum, the failure to provide access to probation for a defendant charged with the latter offense would create an "evident disparity of treatment between the two cases”;
that, furthermore, it would be unreasonable that the offense of minor drug dealing is precluded from accessing probation, while the exclusion of punishability for the particular tenuousness of the act, pursuant to Art. 131-bis of the Penal Code, remains possible;
that the questions are asserted to be not manifestly groundless also with reference to Art. 27, third paragraph, of the Constitution: the exclusion of the offense under Art. 73, paragraph 5, of the Consolidated Act on Narcotic Substances from the benefit of probation would, in fact, conflict with the rehabilitative purpose of the sentence, by preventing the defendant from making amends for their conduct through a specifically tailored program, which would also reduce the danger of recidivism.
Considering that, by the order indicated in the heading (reg. ord. no. 199 of 2025), the Court of La Spezia, Criminal Section, sitting as a single judge, raised questions of constitutionality regarding Articles 168-bis, first paragraph, of the Penal Code, 550, paragraph 2, of the Code of Criminal Procedure, and 73, paragraph 5, of the Consolidated Act on Narcotic Substances, with reference to Articles 3 and 27, third paragraph, of the Constitution, insofar as they exclude the offense of minor drug dealing from the scope of application of the suspension of proceedings with probation;
that, subsequent to said order, this Court, with Judgment no. 90 of 2025, has already declared the unconstitutionality, for violation of Art. 3 of the Constitution, of Article 168-bis, first paragraph, of the Penal Code, in the part where it does not allow the suspension of proceedings with probation for the aforementioned offense;
that such judgment identified "an anomaly” that inverted "the scale of severity between the two compared criminal figures [minor drug dealing and incitement to the illicit use of narcotic substances], both related to the field of narcotic substances and intended for the protection of the same legal interests, of which they criminalize the mere exposure to danger”;
that, in fact, "[t]he less serious case is subject to more rigorous treatment, on the considered aspect, namely the admissibility of probation, with a consequent violation of the principles of equality and reasonableness referred to in Art. 3 of the Constitution.”;
that the supervening declaration of unconstitutionality of the cited Art. 168-bis, first paragraph, in the part where it does not allow the suspension of proceedings with probation for the offense of minor drug dealing, in upholding a question comparable to the one under scrutiny, leaves the latter devoid of subject matter and thus determines its manifest inadmissibility (among many, particularly in criminal matters, orders no. 209, no. 208, and no. 35 of 2025, no. 186 of 2024, and no. 86 of 2023);
that, with the same Judgment no. 90 of 2025, this Court also declared the questions of constitutionality regarding Art. 73, paragraph 5, of the Consolidated Act on Narcotic Substances inadmissible, because the "provision is extraneous and not pertinent to the content of the [challenges] under examination, which do not concern the sentencing dosimetry of the offense of minor drug dealing considered in itself […] but only the consequence that resulted from the increase of the statutory maximum of the custodial sentence provided for it: the preclusion of probation”;
that the questions of constitutionality regarding Art. 550, paragraph 2, of the Code of Criminal Procedure were declared equally inadmissible, because accepting them, as formulated by the referring judge, would produce effects exceeding the denounced vulnus, making "the entire procedural discipline of the simplified ritual of direct summons to trial applicable to the criminal case in question, in place of only the institution of the suspension of proceedings with probation”;
that the same findings are applicable to the current questions of constitutionality regarding Articles 73, paragraph 5, of the Consolidated Act on Narcotic Substances and 550, paragraph 2, of the Code of Criminal Procedure, thus determining their manifest inadmissibility.
for these reasons
THE CONSTITUTIONAL COURT
declares the manifest inadmissibility of the questions of constitutionality regarding Articles 168-bis, first paragraph, of the Penal Code, 550, paragraph 2, of the Code of Criminal Procedure, and 73, paragraph 5, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Act of laws regarding the regulation of narcotic and psychotropic substances, prevention, treatment and rehabilitation of related drug dependency states), raised with reference to Articles 3 and 27, third paragraph, of the Constitution, by the Ordinary Court of La Spezia, Criminal Section, sitting as a single judge, by the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on March 12, 2026.
Signed:
Giovanni AMOROSO, President
Francesco Saverio MARINI, Reporting Judge
Igor DI BERNARDINI, Clerk of the Court
Deposited in the Clerk’s Office on April 3, 2026
The anonymized version is consistent in text with the original