ORDER NO. 53
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Francesco Saverio MARINI,
has pronounced the following
ORDER
in the proceedings regarding the constitutional legitimacy of Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, as amended by Article 2, paragraph 8, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of the criminal process as well as on restorative justice and provisions for the swift resolution of judicial proceedings), referred by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, in the criminal proceedings against J.R. G.C., by order of 20 February 2025, registered under no. 48 of the 2025 register of orders and published in the Official Gazette of the Republic no. 13, first special series, of the year 2025.
Having regard to the act of intervention by the President of the Council of Ministers;
having heard in chambers on 26 January 2026 the Reporting Judge Antonella Sciarrone Alibrandi;
having deliberated in chambers on 26 January 2026.
Whereas, by order dated 20 February 2025 (reg. ord. no. 48 of 2025), the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, raised, with reference to Articles 3 and 13 of the Constitution, questions of constitutional legitimacy regarding Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, as amended by Article 2, paragraph 8, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of the criminal process as well as on restorative justice and provisions for the swift resolution of judicial proceedings), in the part in which it provides that, when proceeding to identify a person under investigation who is a citizen of a State not belonging to the European Union, the judicial police must always perform dactyloscopic, photographic, and anthropometric surveys;
that the referring judge reports having to decide on the validation of the arrest carried out against J.R. G.C., a Peruvian citizen brought directly before the trial judge for simultaneous judgment, as he is charged with the crimes of "resisting a public official, aggravated injuries, and carrying an object capable of causing offense”;
that, according to the prosecution’s theory, the first two crimes were committed against three officers of the Florence Municipal Police after the latter—interrupting the taking of summary witness information that J.R. G.C. had been summoned to provide at the premises of the Municipal Police—informed him of their intention to refer him to the judicial authority for the crime of aiding and abetting and that they therefore had to proceed, pursuant to the contested provision, to his escort "to another Department” for photo-identification, "as a non-EU citizen”;
that this allegedly triggered a violent reaction by the suspect, who, in order to oppose the completion of the official acts, claiming not to understand the reason for the escort for identification purposes and stating he had to "go pick up his children,” began to forcefully push and shove the officers, who had intervened to calm him down, causing them personal injuries;
that the referring judge, in order to "be able to reach a correct decision regarding the validation of the arrest and the application of the precautionary measure” requested by the public prosecutor, considers it necessary to raise questions of constitutional legitimacy of Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, in the part in which it "provides that, when proceeding to identify a person under investigation who is a citizen of a State not belonging to the European Union, the Judicial Police must always carry out dactyloscopic, photographic, and anthropometric surveys”;
that, for the referring court, at the moment when "he was being heard for summary information,” the defendant had already been fully identified "with an Italian identity card” and was "the holder of and in possession of a residence permit” issued by the competent police headquarters, both documents being present in photocopy in the case file, issued only a few months prior and accompanied by "very recent” photographs;
that, in any case, when applying for the residence permit, "customary” dactyloscopic surveys had also been carried out, with the consequent assignment of a "Unique Identification Code, easily accessible by the officers thanks to the databases in use,” such that it would not have been necessary at all to perform dactyloscopic, photographic, and anthropometric surveys, which, moreover, had to be carried out at another office "about 3-4 km away”;
that, however, these assessments constituted a "mandatory office act,” being imposed "with respect to citizens of non-EU States,” precisely pursuant to Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, so that only if the raised questions were upheld could the escort to the different municipal police office be considered "neither necessary nor useful” and therefore constitutionally illegitimate, bringing into play a "superfluous compression of personal liberty,” which, from the perspective of the referring judge, would cause the "objective requirement of the crime under Article 337 of the Italian Penal Code” to lapse, relevant also "for the purposes of the aggravating circumstance charged for the crime of injury”;
that, still regarding relevance, but "[f]rom another perspective,” for the referring judge "it could be held that the act of escorting was arbitrary” and, therefore, that the resistance offered was "not punishable pursuant to Article 393-bis of the Italian Penal Code,” with the consequence that the declaration of constitutional illegitimacy in the terms proposed would "significantly affect both the judgment on the validation of the arrest” and "in relation to the request for the application of a precautionary measure”;
that, as to the non-manifest groundlessness, the ratio of the contested provision would "clearly” be that of allowing "the attribution of correct personal details” to the person under investigation and, in any case, "the physical identification of the individual involved,” to avoid the risk that criminal proceedings "are conducted in relation to incorrect personal details or, indeed, in relation to the personal details of other subjects unrelated to the procedural events”;
that, consequently, the risk that the contested provision intends to prevent could only materialize when the individuals involved in the criminal proceedings are "subjects lacking documents or equipped with documents from other countries,” while a repetition of photo-dactyloscopic surveys would be "unreasonable and unnecessarily limiting of personal liberty” when directed towards a subject whose identity—as in the case at hand—"is already unequivocally ascertained”;
that the regulatory provision would also lack the requirement of proportionality, which should instead "distinguish all measures limiting fundamental rights,” since the legislator had made "a compression of personal liberty mandatory even in cases in which said limitation would not be necessary at all”;
that, finally, Article 3 of the Constitution would also be infringed "in relation to the unjustified differential treatment of subjects based on the mere fact of citizenship,” since, according to the jurisprudence of legitimacy (some rulings of which are cited), "for subjects not included in the categories indicated in the newly worded Article 349, paragraph 2, of the Code of Criminal Procedure,” the so-called identification detention provided for by paragraph 4 of the same provision is permitted only if the subject requested "denies any form of collaboration or provides personal details or identification documents in relation to which there are sufficient elements to believe they are false,” otherwise considering the deprivation of personal liberty illegitimate, with the consequent possibility of configuring the justification of reaction to arbitrary acts of a public official;
that, for the referring judge, a different interpretation, consistent with the Constitution, would not be feasible, "the literal data being clear”;
that the President of the Council of Ministers intervened in the constitutional proceedings, represented and defended by the State Attorney General, requesting that the raised questions be declared inadmissible or, in any event, groundless;
that the intervener considers, in the first place, the reasoning regarding the relevance of the questions to be implausible, as "Article 2, paragraph 2, of the Italian Penal Code (abolitio criminis)” is not applicable, since the punishability of the conduct would remain unchanged even if the normative element of the offense—the official act—were to lapse "as a result of a legislative amendment”;
that, in any case, for the intervener, the "lapse of the normative element of the official act, understood as a mandatory action which the public official is required to perform,” would not allow for the applicability—alternatively postulated by the referring judge—of the "justification of Article 393-bis of the Italian Penal Code,” as a clear distinction must be made between an "(erroneously) illegitimate act” and an act that is arbitrary ab origine;
that the referring judge should have preliminarily ascertained that the act performed by the public official was "completely unjustified or persecutory,” or "abusive and disproportionate in relation to the situation in which the official is called upon to perform it,” because only in this way could the justification under Article 393-bis of the Italian Penal Code be considered integrated;
that, on the merits, the questions would in any case be groundless;
that, first of all, the lamented disparity of treatment between the different categories of subjects identified in Article 349 of the Code of Criminal Procedure would be non-existent, as such provision is consistent with the different principles governing judicial cooperation, respectively inside and outside the European Union, it being necessary to consider that many States not belonging to the latter, "in a non-remote hypothesis,” might not offer the cooperation eventually requested by the Italian judicial authority;
that the State Attorney’s Office acknowledges that the photo-dactyloscopic surveys to which the foreign citizen is subjected at the time of issuance of the residence permit are collected in a so-called "AFIS” sheet, within the automated system for the identification of fingerprints of the central identity criminal record office of the Ministry of the Interior, with the automatic generation of the "CUI (Unique Identification Code),” an alphanumeric code uniquely linked to the person;
that, however, the contested provision would perform a different function, being aimed "at strengthening the identification system of the suspect,” in view of the "correct registration of judicial measures in the criminal record certificate” and this "as a guarantee of the criminal proceedings,” since only by comparing the photo-dactyloscopic surveys collected during the identification procedure carried out pursuant to Article 349, paragraph 2, of the Code of Criminal Procedure with those stored in the AFIS sheet would it be possible "to provide the proceeding Judicial Authority with certainty regarding the identity of the subject involved in the proceedings,” avoiding "misunderstandings generated by the use of ‘aliases’ by the same subject and any homonyms” and allowing for the obtaining of information on "any prior criminal records, defined or pending, or any international criminal proceedings”;
that it is no coincidence, the State Attorney’s Office recalls, that Article 4 of Presidential Decree no. 313 of 14 November 2002, containing "Consolidated text of legislative and regulatory provisions regarding the criminal record, the European criminal record, the register of administrative sanctions resulting from crimes and related pending charges (Text A),” provides that every judicial and administrative measure is entered in the criminal record by extract, and that the latter must contain, in addition to "surname, name, place and date of birth,” also the "identification code of the person to whom the measure refers”;
that, while for Italian citizens and those of a European Union State having a tax domicile in Italy this identification element is represented by the tax code, for citizens of a European Union State lacking a tax code as well as for citizens of non-European States and for persons whose citizenship is unknown or for stateless persons, Article 43 of the same Presidential Decree no. 313 of 2002 provides that, "[i]n order to allow for the secure referability of a proceeding” to such subjects, technical rules must be established that allow for "the adoption of an identification code through the use of the fingerprint recognition system existing at the Ministry of the Interior,” such that it would not be unreasonable, nor detrimental to the canon of proportionality, to believe that the two different forms of identification of the non-EU citizen (the one for the issuance of the residence permit and the one at the start of preliminary investigations) serve "distinct functions.”
Considering that the Court of Florence, First Criminal Section, sitting as a single judge, has raised, with reference to Articles 3 and 13 of the Constitution, questions of constitutional legitimacy regarding Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, in the part in which it provides that, when proceeding to identify a person under investigation who is a citizen of a State not belonging to the European Union, the judicial police must always carry out dactyloscopic, photographic, and anthropometric surveys;
that the State Attorney General has preliminarily challenged the admissibility of the questions;
that the challenge is well-founded;
that, in fact, the hermeneutical premise upon which the referral order bases the assessment of the relevance of the questions is erroneous;
that, for the referring judge, the "act” contemplated by Article 337 of the Italian Penal Code would only be that "mandatory” one provided for by the contested provision and, therefore, once the mandatory nature has lapsed, the crime of resisting a public official would no longer be configurable, due to the lack of an objective element of the offense;
that, on the contrary, according to the jurisprudence of legitimacy (among the most recent, Court of Cassation, Sixth Criminal Section, judgment of 7 October 2022–30 January 2023, no. 3945), for the purposes of configuring the crime of resisting a public official, the nature of the act performed by the latter is irrelevant, provided that it is performed in implementation of at least the generic duty to carry out one’s activity in the most effective way for the achievement of the office’s objectives (and provided that the legitimacy of such activity is perceivable by the person subjected to it), such that, even if the contested provision were declared constitutionally illegitimate, the first sentence of paragraph 2 of Article 349 of the Code of Criminal Procedure, even without imposing it, would have in any case granted the public official the authority to perform the act against which resistance was objectively opposed;
that, also by virtue of what has just been illustrated, the motivation regarding the possible applicability of the justification under Article 393-bis of the Italian Penal Code appears completely insufficient, which, according to an alternative proposition of the referring judge, would follow from a judgment upholding the raised questions, even if one were to believe that it does not exclude the configurability of the crime under Article 337 of the Italian Penal Code;
that the referring judge, in the face of an act that in any case falls, as mentioned, within the limits of the public official’s powers, has omitted—even if only to exclude its decisiveness—any assessment, which the State Attorney General instead considers decisive, regarding the arbitrariness of the act against which the defendant opposed resistance, also in consideration of the different interpretations (described, among others, by the Court of Cassation, Sixth Criminal Section, judgment of 26 November 2021–1 March 2022, no. 7255) that still persist within the jurisprudence of legitimacy itself, regarding the relative notion, and particularly its connection to the consciously abusive, disproportionate, or vexatious nature of the attitude assumed by the public official;
that, in conclusion, the reasoning regarding relevance does not pass the test of non-implausibility reserved to this Court regarding the alleged impossibility of settling the judgment independently of the solution to the raised questions;
that, therefore, they must be declared inadmissible.
FOR THESE REASONS
THE CONSTITUTIONAL COURT
declares the questions of constitutional legitimacy of Article 349, paragraph 2, second sentence, of the Code of Criminal Procedure, as amended by Article 2, paragraph 8, of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of the criminal process as well as on restorative justice and provisions for the swift resolution of judicial proceedings), raised with reference to Articles 3 and 13 of the Constitution by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, by the order indicated in the headnote, to be inadmissible.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 26 January 2026.
Signed:
Giovanni AMOROSO, President
Antonella SCIARRONE ALIBRANDI, Reporting Judge
Roberto MILANA, Director of the Chancellery
Filed in the Chancellery on 16 April 2026
The anonymized version is consistent in its text with the original