JUDGMENT NO. 54

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 proceedings regarding the constitutional legitimacy of Art. 102 of Law no. 689 of November 24, 1981 (Amendments to the penal system) and Art. 660, paragraph 3, of the Code of Criminal Procedure, initiated by the Surveillance Magistrate of Bologna, by orders dated March 31 and April 16, 2025, registered under numbers 84 and 89 of the 2025 register of orders, and published in the Official Gazette of the Republic, no. 21, first special series, of the year 2025.

Having regard to the acts of intervention by the President of the Council of Ministers;

having heard in the chambers on February 9, 2026, the Reporting Judge Massimo Luciani;

having deliberated in the chambers on February 9, 2026.

Statement of Facts

1.– By order dated March 31, 2025, registered as no. 84 of the 2025 register of orders, the Surveillance Magistrate of Bologna, called upon to rule on an application for the conversion of a pecuniary penalty filed, pursuant to Art. 660 of the Code of Criminal Procedure, by the Public Prosecutor at the Ordinary Court of Ferrara against A. G., raised questions of constitutional legitimacy, with reference to Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, regarding Art. 102 of Law no. 689 of November 24, 1981 (Amendments to the penal system) and, "consequentially,” Art. 660, paragraph 3, of the same Code of Criminal Procedure—as replaced, respectively, by Art. 71, paragraph 1, letter dd), and Art. 38, paragraph 1, letter c), of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating to the Government the power to increase the efficiency of criminal proceedings, as well as on matters of restorative justice and provisions for the expedited definition of judicial proceedings)—in the part where, in the event of non-payment of the pecuniary penalty within the prescribed time limits, they provide for conversion into substitute semi-liberty rather than substitute house arrest, or, in the alternative, in the part where they do not provide for conversion, as an alternative, into substitute semi-liberty "or substitute house arrest” (emphasis in the original).

The referring judge explains that against A. G.—sentenced to two years and twenty days of imprisonment and a fine of 3,000.00 euros for the crimes of drug trafficking, resisting a public official, and personal injury—the competent Public Prosecutor issued, pursuant to Art. 660 of the Code of Criminal Procedure, an order for the execution of the pecuniary penalty, enjoining payment within ninety days and issuing the notices provided for by paragraph 3 of the aforementioned provision, including the one regarding the right to request payment in installments within twenty days. Once the deadline for payment had passed, and in the absence of a request for installment payments, the Public Prosecutor transmitted the documents to the Surveillance Magistrate to proceed with the conversion of the pecuniary penalty.

Having ascertained the condition of culpable "insolvency” (so-called culpable) and not of "inability to pay” (so-called blameless), as the defendant possessed income adequate and sufficient for the payment of the pecuniary penalty, the referring judge, no longer being able to order installment payments, the right having lapsed due to the defendant’s own inaction, would have to order the conversion of the unpaid pecuniary penalty into substitute semi-liberty for twelve days, according to the calculation criterion provided by Art. 135 of the Penal Code, of 250.00 euros for each day of imprisonment.

1.1.– In the reasoning regarding the relevance of the issue, the referring judge relies on the circumstances described in the point above, stating that only once the "incarceration” restriction has been ordered could the defendant request installment payments, without the possibility of having the restrictive measure of substitute house arrest applied in lieu of the restrictive measure of semi-liberty.

On the other hand, a constitutionally oriented interpretation would not be feasible, as the tenor of the provision is unequivocal, leaving the judge no margin of discretion regarding the conversion of the principal pecuniary penalty.

1.2.– As regards the non-manifest groundlessness, the referring judge believes that the challenged provisions conflict first and foremost with Articles 3 (second paragraph) and 13 of the Constitution.

By way of premise, the referring judge illustrates the main aspects of the reform regarding pecuniary penalties introduced by Legislative Decree no. 150 of 2022, motivated by the intent to guarantee the effectiveness of the pecuniary sanctioning system, thus establishing a valid alternative to custodial sentences. While in the previous system, the pecuniary penalty was considered a mere claim of the State against the defendant, the collection of which took place via tax rolls (entrusted in the past to Credit Recovery Offices and then, from 2009, to tax collection agents), currently, functional competence has been entrusted to the Public Prosecutor, who initiates the collection procedure through an actual execution order. Furthermore, in the event of non-payment of the pecuniary penalty within the deadline, the Public Prosecutor transmits the documents to the Surveillance Magistrate for conversion, which is ordered by decree, following verification of the defendant’s condition of insolvency or inability to pay.

The referring judge highlights that, while for the hypothesis of so-called blameless inability to pay, conversion into community service or, in case of opposition, into substitute house arrest can be ordered for both principal pecuniary penalties (Art. 103 of Law no. 689 of 1981) and substitute pecuniary penalties (Art. 71 of Law no. 689 of 1981), for the hypothesis of so-called culpable insolvency, the rules for conversion diverge depending on whether it is a principal or substitute pecuniary penalty. Indeed, while Art. 102 of Law no. 689 of 1981 provides for the conversion of the principal pecuniary penalty only into substitute semi-liberty, Art. 71 of the cited Law provides for the conversion of the substitute pecuniary penalty into semi-liberty or house arrest.

Having stated this, the referring judge, having recalled the case law of this Court on the principle of reasonableness (in particular, Judgments no. 1130 of 1988 and no. 53 of 1958), believes that the legislative choice to provide only for substitute semi-liberty when converting a principal pecuniary penalty violates the principle of proportionality, employing—he states—a "fraud of labels.”

The challenged provision, in fact, provides for conversion into a restrictive, rather than merely limiting, measure of personal liberty, as semi-liberty is defined as a custodial regime and "is served in prison.” Recalling European case law (European Court of Human Rights, Grand Chamber, judgment of October 21, 2013, Del Rio Prada v. Spain) and constitutional case law (Judgment no. 32 of 2020), the referring judge argues that substitute semi-liberty would entail a "qualitative modification of the penalty in the inside-outside prison alternative” (emphasis in the original), when converting a penalty that is not of an intramural nature.

Given this, the referral order states that the legislature should have identified substitute house arrest as "the principal measure” for cases of insolvency, as it would achieve a better balance between punitive needs and the defendant's personal liberty, from the perspective of the minimum necessary sacrifice of the latter.

– In the alternative, the referring judge believes that the provisions under Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure conflict with Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, due to the disparity of treatment that would be determined by the different conversion mechanism provided in case of insolvency for "original” pecuniary penalties—for which only substitute semi-liberty is contemplated—and for pecuniary penalties substituting short-term custodial sentences—for which the alternative between house arrest and semi-liberty is contemplated—notwithstanding the identity of the rules for the hypothesis of inability to pay.

In this regard, the referring judge emphasizes that, in both cases, the conversion finds its genesis in the same fact (i.e., the non-payment of the pecuniary penalty due to the culpable conduct of the defendant).

However, the challenged legislation would cause the same factual and legal prerequisite to found disciplines "divergent based on the genus of the penalty to which it accesses,” thus incurring a violation of the principle of substantive equality referred to in Art. 3, second paragraph, of the Constitution, and unreasonableness due to disparity of treatment of equal situations.

In this sense, recalling the explanatory report to Legislative Decree no. 150 of 2022, the diversity of regulation seems to the referring judge founded on the intent, in the case of conversion of original pecuniary penalties, not only to sanction insolvency, but also to punish the crime for which the conviction was ordered and whose penalty remained unexecuted: "[a]t the basis of this differentiation one could grasp the idea that while original pecuniary penalties usually access serious crimes as a principal sanction, the substitute pecuniary penalty would represent, according to the perspective assumed by the legislature, the milder response that the legal system offers to a custodial sanction contained within one year and, hypothetically, this would highlight such a measure as statistically applicable to less serious crimes” (emphasis in the original).

This profile would be, according to the referring judge, unreasonable, as Art. 57, last paragraph, of Law no. 689 of 1981, establishes that "[t]he pecuniary penalty is always considered as such, even if it substitutes the custodial penalty,” thus indicating the irrelevance of the originality or otherwise of the pecuniary nature of the sanction. Furthermore, the difference in regulation would lead to paradoxical outcomes: an originally pecuniary penalty could be converted into a "qualitatively prison penalty” (emphasis in the original), while an originally custodial penalty could also entail custodial forms of a domestic type.

The conversion criterion would therefore be discriminatory and unreasonable, with injury also to Art. 13 of the Constitution and the "principle of amendment” sanctioned by Art. 27, third paragraph, of the Constitution.

This latter constitutional parameter, in particular, would be violated because "the rigidity of the provision, in providing only for the maximum substitute penalty in the event of conversion, thwarts the principle of amendment and the tendential rehabilitative purpose of the penalty.”

1.3.– By order dated April 16, 2025, registered as no. 89 of the 2025 register of orders, the Surveillance Magistrate of Bologna, called upon to rule on an application for the conversion of a pecuniary penalty filed, pursuant to Art. 660 of the Code of Criminal Procedure, by the Public Prosecutor at the Ordinary Court of Forlì against D.A. D.N., raised questions of constitutional legitimacy, with reference to Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, regarding Art. 102 of Law no. 689 of 1981 and, "consequentially,” Art. 660, paragraph 3, of the Code of Criminal Procedure, in the part where they do not provide for the conversion of the pecuniary penalty, as an alternative, into substitute semi-liberty "or substitute house arrest.”

The referring judge explains that against D.A. D.N.—sentenced to a fine of 1,840.00 euros for the contravention of illegal carrying of a weapon—the competent Public Prosecutor issued, pursuant to Art. 660 of the Code of Criminal Procedure, an order for the execution of the pecuniary penalty, enjoining payment within ninety days and issuing the notices provided for by paragraph 3 of the aforementioned provision, including the one regarding the right to request payment of the pecuniary penalty in installments within twenty days. Once the deadline for payment had passed, in the absence of a request for installment payments, the Public Prosecutor transmitted the documents to the Surveillance Magistrate to proceed with the conversion of the pecuniary penalty. Having ascertained the condition of so-called culpable "insolvency” and not of "inability to pay” (so-called blameless) of the defendant, who possessed income adequate and sufficient for the payment of the pecuniary penalty, the Surveillance Magistrate, no longer being able to order installment payments, the right having lapsed, would have to order the conversion of the unpaid pecuniary penalty into substitute semi-liberty for seven days, according to the calculation criterion provided by Art. 135 of the Penal Code, of 250.00 euros for each day of imprisonment.

1.3.1.– In the reasoning regarding the relevance of the issues, the referring judge relies on the circumstances described in the point above, stating that only once "incarceration” has been ordered could the defendant request installment payments, without the possibility of having the restrictive measure of substitute house arrest applied in lieu of the restrictive measure of semi-liberty.

On the other hand, a constitutionally oriented interpretation would not be feasible, as it is hindered by the unequivocal tenor of the provision, which, for the hypothesis of conversion of the principal pecuniary penalty, leaves the judge no margin of discretion.

1.3.2.– As regards the non-manifest groundlessness, the referring judge, having illustrated by way of premise the main aspects of the reform of the rules regarding pecuniary penalties introduced by Legislative Decree no. 150 of 2022, with arguments substantially similar to those already set out supra (point 1.2.), believes that the provisions under Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure conflict with Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, due to the disparity of treatment determined by the conversion mechanisms provided in case of insolvency for "original” pecuniary penalties—for which only substitute semi-liberty is contemplated—and those provided for pecuniary penalties substituting short-term custodial sentences—for which the alternative between substitute house arrest and substitute semi-liberty is contemplated—notwithstanding the identity of the rules for the hypothesis of inability to pay.

The referring judge emphasizes that, in both cases, the conversion finds its genesis in the same fact, i.e., the non-payment of the pecuniary penalty due to the culpable conduct of the defendant. However, the same factual and legal prerequisite founds "a different regulation,” determining a violation of the principle of substantive equality referred to in Art. 3, second paragraph, of the Constitution, and unreasonableness due to disparity of treatment between equal situations.

In this sense, recalling the same arguments already set out at point 1.2.1. (with reference to the order registered under no. 84 of 2025, which is entirely similar, for what matters, to the one described here), the referring judge believes that the conversion criterion would be discriminatory and unreasonable, with injury also to Articles 13 and 27 (third paragraph) of the Constitution, and that the acceptance of the issues should lead to the provision of a conversion, as an alternative, into substitute semi-liberty or substitute house arrest.

With particular reference to Art. 27, third paragraph, of the Constitution, the assumption of the referring judge is that "[n]ot allowing [...] the Surveillance Magistrate to grade and individualize the sanctioning treatment, precluding at the root the choice between the more serious measure and the less afflictive domiciliary one, also exposes the system to the risk of over-sanctioning.”

2.– The President of the Council of Ministers intervened in both proceedings, represented and defended by the State Attorney General, requesting, with two distinct acts that are substantially similar, that the aforementioned questions of constitutional legitimacy be declared in part inadmissible and in part unfounded.

In the opinion of the intervenor, the issues raised with reference to the parameter of Art. 13 of the Constitution would be inadmissible due to omission of reasoning, while the other issues raised with reference to the parameters of Articles 3 (second paragraph) and 27 (third paragraph) of the Constitution would be manifestly unfounded: the conversion of the pecuniary penalty into substitute semi-liberty concerns the hypothesis of so-called culpable insolvency, i.e., the case in which the defendant has culpably failed to comply or has negligently failed to act, making himself liable to a reprobation of his conduct. Judgment no. 131 of 1979 of this Court, moreover, in asserting the contrariety to the principle of equality of conversion into a custodial penalty for only the insolvent, had provided the delegated legislature of 2022 with an important indication on the structuring of the new system. In this regard, reference is also made to the Council Framework Decision 2005/214/JHA of February 24, 2005, on the application of the principle of mutual recognition to financial penalties, implemented by Legislative Decree no. 37 of February 15, 2016 (Implementation of Council Framework Decision 2005/214/JHA of February 24, 2005, on the application among Member States of the European Union of the principle of mutual recognition to financial penalties), at Art. 13, paragraph 5, of which the Attorney General states that it establishes that "where it is impossible to execute the decision totally or partially, the executing State may apply alternative sanctions, including penalties involving deprivation of liberty.”

Therefore, it would not be unreasonable to provide for the more burdensome measure of substitute semi-liberty in the face of voluntarily non-compliant behavior, a sure indicator of deliberate indifference to the sanction suffered in relation to the original crime. As for the choice of the sanction, it would fall within the discretion of the legislature, and the solution proposed by the referring judges, which aims to introduce the alternative between substitute house arrest and substitute semi-liberty, would itself be unreasonable, offering no certainty regarding the sanctioning outcome resulting from the voluntary omitted payment and leaving to the discretionary choice of the surveillance magistrate the identification of the measure, in the absence of precise, normatively fixed criteria.

Considered in Law

3.– With the order registered as no. 84 of the 2025 register of orders, the Surveillance Magistrate of Bologna raised, with reference to Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, questions of constitutional legitimacy regarding Art. 102 of Law no. 689 of 1981, and, "consequentially,” Art. 660, paragraph 3, of the Code of Criminal Procedure—as replaced, respectively, by Art. 71, paragraph 1, letter dd), and Art. 38, paragraph 1, letter c), of Legislative Decree no. 150 of 2022—in the part where, in the event of non-payment of the pecuniary penalty within the time limits, they provide for conversion into substitute semi-liberty, rather than substitute house arrest, or, in the alternative, in the part where they do not provide for conversion, as an alternative, into substitute semi-liberty "or substitute house arrest” (emphasis in the original).

With the order registered as no. 89 of the 2025 register of orders, the Surveillance Magistrate of Bologna raised exclusively, on the same norms and with reference to the same parameters, questions of constitutional legitimacy similar to those raised in the alternative by the order registered as no. 84 of the 2025 register of orders.

3.1.– As regards the facts of the case, the orders explain that the Surveillance Magistrates were called upon to rule on the applications for the conversion of a pecuniary penalty filed, pursuant to Art. 660 of the Code of Criminal Procedure, by the territorially competent Public Prosecutor against, respectively, A. G.—sentenced to the penalty of two years and twenty days of imprisonment and a fine of 3,000.00 euros for the crimes of drug trafficking, resisting a public official, and personal injury—(reg. ord. no. 84 of 2025), and against D.A. D.N.—sentenced to the penalty of a fine of 1,840.00 euros for the contravention of illegal carrying of a weapon—(reg. ord. no. 89 of 2025).

Having ascertained the condition of culpable "insolvency” and not of blameless "inability to pay” of the defendants, who possessed income adequate and sufficient for the payment of the pecuniary penalty inflicted on them, the Surveillance Magistrates, no longer being able to order installment payments, the right having lapsed, would have to determine the conversion of the unpaid pecuniary penalty into substitute semi-liberty, respectively, for twelve days and for seven days, according to the calculation criterion provided by Art. 135 of the Penal Code, of 250.00 euros for each day of imprisonment.

3.2.– The first of the referring judges (reg. ord. no. 84 of 2025) believes, primarily, that the provisions under Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure conflict with Articles 3 (second paragraph) and 13 of the Constitution.

The referring judge highlights that, while for the hypothesis that, subsequently, he defines as "blameless” inability to pay, the conversion of the pecuniary penalty into community service or, in case of opposition, into substitute house arrest can be ordered for both principal pecuniary penalties (Art. 103 of Law no. 689 of 1981) and substitute pecuniary penalties (Art. 71 of Law no. 689 of 1981), for the hypothesis of "culpable” insolvency the rules for conversion diverge depending on whether it is a principal or substitute pecuniary penalty. Indeed, while Art. 102 of Law no. 689 of 1981 provides for the conversion of the principal pecuniary penalty only into substitute semi-liberty, Art. 71 of the cited law provides for the conversion of the substitute pecuniary penalty into semi-liberty or house arrest.

Having stated this, the referring judge believes that the legislative choice to provide only for substitute semi-liberty when converting a principal pecuniary penalty violates the principle of proportionality, employing—he states—a "fraud of labels.”

3.2.1.– Both referring judges also believe, in the alternative for the first (reg. ord. no. 84 of 2025) and exclusively for the second (reg. ord. no. 89 of 2025), that the provisions under Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure conflict with Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, due to the disparity of treatment that would be determined by the different conversion mechanism provided in case of insolvency for "original” pecuniary penalties—for which only substitute semi-liberty is contemplated—and for "substitute” pecuniary penalties for short-term custodial sentences—for which the alternative between house arrest and semi-liberty is contemplated—notwithstanding the identity of the rules for the hypothesis of inability to pay. While the conversion finds its genesis, in both cases, in the same fact (i.e., in the non-payment of the pecuniary penalty due to the culpable conduct of the defendant), the challenged legislation would cause the same factual and legal prerequisite to found disciplines "divergent based on the genus of the penalty to which it accesses,” thus incurring a violation of the principle of substantive equality referred to in Art. 3, second paragraph, of the Constitution, and unreasonableness due to disparity of treatment of equal situations.

As regards the parameter of Art. 27, third paragraph, of the Constitution, the doubt highlighted by both referring judges concerns, albeit with nuances of differentiation, the sanctioning automatism and the lack of proportionality of the sanction contemplated by the challenged provisions.

4.– The President of the Council of Ministers intervened in both proceedings, requesting, with two distinct acts that are substantially similar, that the aforementioned questions of constitutional legitimacy be declared in part inadmissible and in part unfounded.

5.– Preliminarily, the joinder of the proceedings must be ordered so that they may be decided with a single judgment, the relative questions of constitutional legitimacy having as their object the same provisions, proposing analogous challenges, and evoking coinciding parameters (among many, Judgments no. 171 of 2024 and no. 220 of 2023).

6.– It is necessary to proceed further preliminarily from the procedural objections proposed by the State Attorney General.

The objection of inadmissibility of the issues raised with reference to the parameter of Art. 13 of the Constitution due to omission of reasoning is well-founded: the violation of the constitutional provision is, in fact, apodictically proposed without any adequate and autonomous illustration of the reasons for which the challenged provisions would integrate a violation of the evoked parameter (in this sense, ex multis, Judgment no. 135 of 2023 with reference to Judgments no. 2 of 2023, no. 263, no. 256, no. 253 and no. 128 of 2022 and no. 252 of 2021).

The raised issues must therefore be declared inadmissible with reference to the alleged violation of Art. 13 of the Constitution.

7.– Having thus overcome the procedural objections, it is appropriate to premise to the scrutiny of the merits of the aforementioned incidental questions of constitutional legitimacy a brief reconstruction of the legislation concerning the conversion of pecuniary penalties, also in its diachronic development.

7.1.– As is well known, the discipline of the conversion of pecuniary penalties prior to Legislative Decree no. 150 of 2022 was subject to some interventions by this Court.

In particular, in the original framework of the 1930 Penal Code, Art. 136 provided for the conversion of the pecuniary penalty into a custodial penalty only for the insolvent, not also for the insolvent.

Law no. 354 of July 26, 1975 (Rules on the penitentiary system and on the execution of measures involving deprivation and limitation of liberty) established, in Art. 49, that custodial penalties derived from the conversion of pecuniary penalties should be served in a semi-liberty regime.

This Court intervened on this regulatory framework, which, with Judgment no. 131 of 1979, declared the constitutional illegitimacy of Art. 136 of the Penal Code, considering the conversion mechanism of the penalty provided therein a sort of "sanction for poverty,” in violation of the principle of equality; in particular, it was noted, among other things, that "[t]he conversion of the pecuniary penalty into a custodial one under the current legislation, ends [...] by being implemented only at the expense of those without assets, of the subjects, that is, forced into the loneliness of a misery that also precludes any economic solidarity, and bears, therefore, the unmistakable mark of discrimination based on personal and social conditions, the illegitimacy of which is openly, literally, proclaimed by Art. 3 of the Constitution.”

To fill the regulatory vacuum thus created, Law no. 689 of 1981 provided, which, in Art. 102, introduced, as penalties for conversion, controlled liberty and, upon request, substitute work.

In fact, until the 2022 reform, the main penalty for conversion was controlled liberty, calibrated essentially on the obligation to report at least once a day to the local public security office.

Even after the signaled interventions of this Court and the legislature, the model prior to 2022 affected above all the condition of inability to pay of the defendant, since in the face of the condition of insolvency, the mere reiteration of collection attempts was contemplated. The two conditions, then, were generally (and indeed still are) qualified—respectively—"blameless” and "culpable,” even though the legislature carves out their distinction with only the nouns, without any adjectives.

That model, in any case, suffered from an almost total degree of ineffectiveness, attested by collection percentages of pecuniary penalties lower than 1 percent, as results from the explanatory report to Legislative Decree no. 150 of 2022. Moreover, the pathological situation in which the collection of the pecuniary penalty found itself was repeatedly denounced both by legal doctrine, also in the perspective of a—hoped-for—progressive liberation from the "prison-centric” conception of our penal system, and by this Court, which hoped for "a comprehensive intervention […] aimed at restoring effectiveness to the pecuniary penalty, also through a revision of the current, cumbersome mechanisms of forced execution and conversion into penalties limiting personal liberty” (Judgment no. 15 of 2020 and, in the same sense, Judgments no. 279 of 2019 and no. 108 of 1987).

7.2.– To this condition of ineffectiveness and substantial inefficiency of the previous legislation, Legislative Decree no. 150 of 2022 largely and appropriately remedied, first of all by abandoning, in the discipline of the execution of the pecuniary penalty, the traditional civilistic approach, which assimilated it to the State’s claims, to be collected through registration on the tax roll and the complex administrative procedure regulated by the consolidated text on judicial expenses (Presidential Decree no. 115 of May 30, 2002, containing "Consolidated text of legislative and regulatory provisions regarding judicial expenses - Text A”), and adopting a penalistic model, consistent with the nature of penalties that is proper to the fine and the penalty.

In this sense, the updated Art. 660 of the Code of Criminal Procedure provides for a discipline of the execution of pecuniary penalties modeled on the execution of custodial penalties provided by Art. 656 of the Code of Criminal Procedure: the procedure opens in fact with an execution order issued by the Public Prosecutor, which contains the indication of the amount of the sanction and the methods of payment, the injunction to provide for payment within ninety days of notification, and the notice that in case of non-payment, the conversion will be proceeded with according to Articles 102 and 103 of Law no. 689 of 1981.

As for the discipline of the conversion of pecuniary penalties, Legislative Decree no. 150 of 2022 followed—in substance—three essential guidelines.

7.2.1.– In the first place, it distinguished (with clarity) the case of "insolvency” from that of "inability to pay.” As already mentioned above, this second was the only one that was contemplated by the previous discipline as a prerequisite for the conversion of pecuniary penalties: just as affirmed by the case law of legitimacy, in fact, in the previous regime, this prerequisite lay in the verification of the effective inability to pay of the defendant, to be understood as "definitive and ascertained economic impossibility of fulfilling.” A condition, this, well distinct from that of insolvency, to be understood as a "transitory state,” suitable to allow the deferment or installment payment of the pecuniary penalty (in this sense, Court of Cassation, first criminal section, judgment no. 26358 of June 9-July 15, 2005, and in the same sense, United Criminal Sections, judgment no. 34 of October 25, 1995-January 17, 1996).

7.2.2.– In the second place, it entirely modified the regime of the consequences of non-payment—within the time limits—of the pecuniary penalty.

While the previous system, as seen, was calibrated on controlled liberty as the (main) penalty for conversion, that is, in substance, on an obligation to report at least once a day to the local public security office, the new system reintroduced penalties for conversion also of a custodial nature, not only for situations of inability to pay of the defendant, but also for cases of insolvency (not due—that is—to the impossibility of paying).

All this resulted in a significant increase in the rate of effective collection of the sums owed to the treasury as pecuniary penalties, passing from percentages lower than 1 percent (according to what was noted by the explanatory report to Legislative Decree no. 150 of 2022) to percentages that, according to the annual report to Parliament on the state of execution of pecuniary penalties, presented by the Minister of Justice in 2024, reached almost 20 percent.

7.2.3.– Lastly, Legislative Decree no. 150 of 2022 opted for an articulated reaction to the non-payment of the pecuniary penalty, providing for three types of measures: substitute community service; substitute house arrest; substitute semi-liberty.

In particular, as regards the case of non-payment of the principal pecuniary penalty, Art. 136 of the Penal Code refers to Articles 102 and 103 of Law no. 689 of 1981 for the discipline of cases of non-payment due, respectively, to insolvency or inability to pay. In their turn: Art. 102, regarding the hypothesis of insolvency, identifies the penalty for conversion in substitute semi-liberty, which entails the obligation to spend at least eight hours a day in prison, substitute semi-liberty whose duration is determined according to the calculation criteria referred to in Art. 135 of the Penal Code (250.00 euros for one day of semi-liberty), within the maximum limit of four years when the converted penalty is the fine and two years when it is the penalty; Art. 103, regarding the hypothesis of inability to pay, contemplates the dual possibility of substitute community service or, if the defendant objects, substitute house arrest.

Instead, regarding the non-payment of the substitute pecuniary penalty for short-term custodial sentences, Art. 136 of the Penal Code refers to Art. 71 of Law no. 689 of 1981 for the discipline of cases of non-payment due, respectively, to insolvency (second paragraph) or inability to pay (third paragraph), contemplating, in both cases, a dual possibility of conversion: in the first, the penalty for conversion can be substitute semi-liberty or substitute house arrest; in the second, the penalty for conversion can be substitute community service or, if the defendant objects, substitute house arrest.

It is also worth noting that alternative measures to detention are not applicable to those sentenced to substitute semi-liberty or substitute house arrest derived from the conversion of a pecuniary penalty (Art. 103-bis of Law no. 689 of 1981), and that, both in case of insolvency and inability to pay, the defendant can terminate the execution of the penalty for conversion by paying the fine or the penalty, deducted the sum corresponding to the duration of the penalty for conversion served, and, to this end, can be admitted to payment in installments (Art. 102, fourth paragraph, and Art. 103, fourth paragraph, of Law no. 689 of 1981).

It must also be emphasized that a transitional discipline was dictated (Art. 99-bis of Legislative Decree no. 150 of 2022, inserted by Art. 6, paragraph 1, of Decree-Law no. 162 of October 31, 2022, containing "Urgent measures on the matter of prohibition of granting penitentiary benefits to prisoners or internees who do not collaborate with justice, as well as on the matter of terms of application of the provisions of Legislative Decree no. 10 of October 2022, no. 150, and provisions relating to disputes of sports justice, as well as vaccination obligations against SARS-CoV-2, implementation of the National Plan against an influenza pandemic and prevention and contrast of illegal gatherings,” converted, with amendments, into Law no. 199 of December 30, 2022), which expressly reserves the application of the new discipline of the execution and conversion of the pecuniary penalty to crimes committed after December 30, 2022.

8.– Having specified this, one can now move on to the question that the referring judge, in the proceedings registered as no. 84 of the 2025 register of orders, proposes primarily and according to which substitute semi-liberty, determining a deprivation of personal liberty for a part of the day, thus integrating a custodial regime, would be disproportionate with respect to the punitive requirement underlying the conversion of the pecuniary penalty. According to the referring judge, the legislature should have identified in substitute house arrest "the principal measure” for cases of insolvency, as a limiting, and not restrictive, measure of personal liberty, which would achieve a better balance between punitive requirements and personal liberty.

Such a question is unfounded.

This Court has always recognized the wide discretion of the legislature in defining its criminal policy, in particular in the determination of the penalties applicable to those who have committed crimes (in this sense, among the numerous others, Judgments no. 193, no. 117 and no. 113 of 2025, no. 207 of 2023 and no. 117 of 2021), while affirming that the review of its exercise must be particularly careful in this matter, in consideration of the "burdensome consequences on the constitutional rights of the addressee of criminal law” (most recently, Judgment no. 10 of 2026).

The referring judge evokes the second and not the first paragraph of Art. 3 of the Constitution, but although the profile of substantive equality emerges in the reasoning of the order (and indeed it is pronounced upon at the close of this point), what is primarily solicited is that this Court exercise, on the exercise of legislative discretion, a review of reasonableness.

Such a review, according to constant constitutional case law, concerns only the profile of manifest unreasonableness, in the sense that the sanctioning treatment "must be rationally justifiable in relation to one or more legitimate purposes pursued by the legislature” and the chosen means "must not result in being manifestly disproportionate with respect to those even legitimate purposes” (thus, among others, Judgment no. 46 of 2024).

Well then: both the margin of legislative appreciation and its limits must evidently be recognized also where it concerns the legislative determination of "second-degree” penalties derived from the conversion of pecuniary penalties, both principal (Art. 17 of the Penal Code) and substitute (Art. 20-bis of the Penal Code).

In this sense, the legislature’s choice to provide for a limiting, custodial-natured measure of personal liberty for the hypothesis of insolvency of the defendant does not seem of itself to reach the manifest unreasonableness of the exercise of legislative discretion, considering that, also in the intention of the legislature, the penalty for conversion identified for the hypothesis of insolvency assumes the role of an instrument of pressure on the defendant for the payment of the fine or penalty, in order to ensure the full effectiveness of the inflicted sanction.

At the root of such a choice lies the "idea that the threat of more serious sanctions, in case of non-payment, could represent an effective counter-push to the decision to evade payment.” Idea that was made explicit by the explanatory report to Legislative Decree no. 150 of 2022, which adds: "The law threatens conversion into a penalty limiting personal liberty, more serious than the pecuniary penalty, to ensure the effectiveness of the payment of the pecuniary penalty itself. Unlike custodial penalties, in fact, to be executed, pecuniary penalties require the collaboration of the defendant. The failure of the credit recovery system, which our legal system has traditionally adopted, demonstrates how it is appropriate and necessary to induce the defendant to pay, in order to avoid worse consequences. The penalties for conversion of the unexecuted pecuniary penalty fulfill a dual function: they sanction both the non-payment (if culpable), and the crime committed, substituting the principal pecuniary penalty, which remained unexecuted.”

It may be significant to note, moreover, that this model, besides being adopted in not a few European legal systems (see, for example, paragraph 43 StGB in Germany; Art. 749 of the Code of Criminal Procedure in France; Art. 53 of the Penal Code in Spain; Art. 49 of the Penal Code in Portugal; Art. 36 of the Penal Code in Switzerland; paragraph 19 StGB in Austria; Art. 40 of the Penal Code in Belgium), also appears consistent with the law of the European Union: in this regard, Art. 10 of the JHA Framework Decision 2005/214 establishes that in case of impossibility of giving execution to a conviction to a pecuniary penalty pronounced in another EU Member State "the executing State may apply alternative sanctions, including penalties involving deprivation of liberty” (emphasis added). The framework decision, moreover, was implemented in Italy by Legislative Decree no. 37 of 2016, which, in Art. 13, paragraph 5, without mentioning "penalties involving deprivation of liberty,” disposes as follows: "When it results totally or partially impossible to give execution to the decision on pecuniary sanctions, it is possible to apply alternative sanctions if the decision-making State has given the necessary consent in the certificate attached to this decree. The entity of the alternative sanction is determined according to Italian legislation, but cannot exceed the maximum limit indicated in the certificate transmitted by the decision-making State.”

Nor, moreover, does the challenged regulatory solution find opposition in the case law of this Court, which, with the cited Judgment no. 131 of 1979, had declared the constitutional illegitimacy of conversion into a custodial penalty for the different hypothesis—the only one at the time so disciplined, it is reiterated—of inability to pay: the ratio of the decision must in fact be found in the discrimination, violating the principle of equality, against less affluent people and in the provision of a sort of "sanction for poverty.” A situation, this, which does not come into view in the case subject to scrutiny, since Art. 102 of Law no. 689 of 1981 identifies in semi-liberty the penalty for conversion for the hypothesis of insolvency. Existing, therefore, the prerequisite of economic capacity, the hypothesis of a sanction for "mere poverty” does not come into view, which could result in violation, at the same time, of the first and second paragraph of Art. 3 of the Constitution.

On the other hand, the preference that the referring judge would like to recognize to substitute house arrest, as a "principal,” or even exclusive, penalty for conversion for the hypothesis of insolvency, appears to be the fruit of a completely personal evaluation and in any case of opportunity, which places the relative questions even on the ridge of inadmissibility, escaping this Court (as recalled, most recently, by Judgment no. 7 of 2024) "every evaluation of a political nature and every review of the use of the discretionary power of Parliament” (Art. 28 of Law no. 87 of March 11, 1953, containing "Rules on the constitution and functioning of the Constitutional Court”).

9.– It is well-founded, instead, the question of constitutional legitimacy concerning the denounced disparity of treatment determined by the conversion mechanisms provided, in the case of insolvency, for "original” pecuniary penalties (recte: principal)—for which only substitute semi-liberty is provided—and for "substitute” pecuniary penalties for short-term custodial sentences—for which the alternative between house arrest and substitute semi-liberty is provided—, proposed in the alternative by the first referring judge (reg. ord. no. 84 of 2025) and exclusively by the second (reg. ord. no. 89 of 2025).

Both referral orders evoke, as parameters, Articles 3 (second paragraph), 13, and 27 (third paragraph) of the Constitution, but—considered the tenor of their reasoning part—it must be held, as regards in particular Art. 3 of the Constitution, that it is also taken into consideration (and above all) for the profile of the violation of its first paragraph. As for Articles 13 and 27 of the Constitution, it has already been said that on the first there is no real reasoning, so the relative question is inadmissible, while as regards the second, the relative reference, on one hand, intends to contest the lack of flexibility and proportionality of the challenged sanction, but on the other it turns out to be substantially reinforcing a motivation that is centered on the principle of equality.

The referring judges emphasize in fact, in both cases, that the conversion finds its genesis in the same fact, i.e., in the non-payment of the pecuniary penalty due to the so-called culpable conduct of the defendant; however, they believe that the same factual and legal prerequisite founds disciplines illegitimately "divergent based on the genus of the penalty to which it accesses” (thus, textually, in the order registered as no. 84 of the 2025 register of orders).

It is precisely with reference to Art. 3, first paragraph, of the Constitution, that the above-described challenge results worthy of positive appreciation.

9.1.– The question submitted to the scrutiny of this Court concerns the constitutional legitimacy of the regulatory treatment of substitute pecuniary penalties in relation to that of principal pecuniary penalties. Although both referring judges also recall the principle of reasonableness, it is therefore a judgment concerning a typical challenge of disparity of treatment, which, logically, requires a comparison between the scrutinized cases.

The case law of this Court, defining the substance of the equality judgment in a strict sense (understood, that is, as a comparison between cases, not in its projection of reasonableness evaluation), has long affirmed that "[t]he parameter of equality [...] does not express the conceptualization of an abstract category, statically elaborated in function of an immanent value from which the legal system cannot prescind, but defines the essence of a judgment of relation that, as such, assumes a necessarily dynamic prominence” (Judgment no. 89 of 1996), and recently it reiterated that "if "the principle of equality expresses a judgment of relation by virtue of which to equal situations must correspond identical discipline and, conversely, differentiated disciplines will have to be conjugated to different situations, this is equivalent to postulating that the examination of the conformity of a rule to that principle must develop according to a dynamic model, centering on the "why” a certain discipline operates, within the egalitarian fabric of the legal system, that specific distinction, and therefore draw the due conclusions in point of correct use of regulatory power” (Judgment no. 7 of 2024, point 16 of the Considered in law; Judgments no. 43 of 2022, no. 276 of 2020 and no. 241 of 2014)” (Judgment no. 164 of 2025).

The model of the equality judgment in a strict sense, thus drawn, finds at its center the concept of relevance, since the regulatory treatment of a case can be considered discriminatory in relation to that of another case only in so far as the comparison with such second case is precisely relevant. All things, persons, or situations are similar for some profile and dissimilar for some other, so that, with the aim of operating between them a comparison that makes sense, it is necessary to establish which profile is relevant. It is, that is, to determine, among the so-called "family resemblances” that characterize the elements of a certain set, which belong to the judgment of equality and which do not.

With the aim of grasping the relevance of the comparison based on parameters as objective as possible, which delimit the discretion of whoever operates it, the instrument of the tertium comparationis has been elaborated in logic and of such an instrument also the case law of this Court has intended to make use for decades now. Its importance is such that on not a few occasions (for example, Judgments no. 15 of 1983, no. 71 of 2022, no. 150 of 2023, no. 106 of 2025; Order no. 184 of 2018) has been declared the inadmissibility of the questions of constitutional legitimacy that the referring judge had proposed evoking Art. 3, first paragraph, of the Constitution for the profile of the disparity of treatment, but without indicating a (suitable) tertium (that is, a rule or regulatory case that could serve as a yardstick for the appreciation of the respect for the principle of equality).

Nonetheless, although the tertium comparationis is an element "from which an equality judgment well set should never prescind” (Judgment no. 166 of 1982), it must be observed not only that sometimes a suitable tertium is not available in the current legislative sources, but also and above all that—as happens for all "things”—also regulatory cases and the rules that describe them present undefined profiles of similarity and difference, so that the interpreter is called to choose among a potentially unlimited number of tertia. This choice is, once again, parameterized on the relevance, it being indispensable to ascertain precisely the suitability of the norm or case assumed as reference "to rise to tertium comparationis” (have carried out, most recently, this verification Judgment no. 10 of 2026 and, in a similar sense, Judgment no. 7 of 2026). It follows that the equality judgment in a strict sense—that is, the judgment that assumes as a paradigm the most intimate nucleus of Art. 3 of the Constitution—is essentially a judgment of relevance (in which the tertium positions itself as a "profile” of the quaestio: thus, Judgment no. 218 of 2025).

Now, while for those who operate in other domains of human thought and action the choice of what is or is not relevant can be assumed within margins often very wide of discretion, this is not granted in the domain of law. In particular, in the judgment of constitutional legitimacy, the relevance of the comparison cannot be determined by this Court by reason of a free appreciation: where this happened, it—as noted decades ago by authoritative doctrine—would make a valuation of opportunity forbidden by the already remembered Art. 28 of Law no. 87 of 1953. Relevance, instead, must be determined by this Court by reason of the perspective that the Constitution itself imposes to assume, that is on the basis of the rights, the duties, or the constitutional interests at play: any norm or regulatory case, as mentioned, is abstractly comparable to any other for some profile (to be silent about other, because all are united by normativity), but in the judgment of equality detect, while remaining the prohibitions explicitly listed by Art. 3, first paragraph, of the Constitution, the only profiles for which one discusses of such rights, duties, or specific constitutional interests. Also to be distinctly considered are the needs of systematic coherence and the purposes pursued by the rule subject to control of constitutional legitimacy and by that assumed as tertium, which must be coherent and at least not unworthy of constitutional protection.

Such being the structure of the equality judgment in a strict sense, it is necessary to ask oneself if, in the case that occupies us, the case of principal pecuniary penalties and that of substitute pecuniary penalties are usefully comparable. Both referral orders scrutinized here pose the doubt and both, as already reported in the narrative, state that "[a]t the basis of this differentiation one could grasp the idea that while original pecuniary penalties usually access serious crimes as a principal sanction, the substitute pecuniary penalty would represent, according to the perspective assumed by the legislature, the milder response that the legal system offers to a custodial sanction contained within one year and, hypothetically, this would highlight such a measure as statistically applicable to less serious crimes” (emphasis in the original). Such a profile, nonetheless, would be for the referred orders irrelevant, as "[t]he pecuniary penalty is always considered as such, even if it substitutes the custodial penalty” (Art. 57, last paragraph, of Law no. 689 of 1981), which would make the two cases fully comparable.

9.2.– The mentioned referral orders hit the mark, for the reasons that follow.

It is evident that all pecuniary penalties are first of all united by having as an object a monetary element, so that already this distinctive trait makes them conceptually homogeneous. Their accessing more or less serious crimes, instead, constitutes an accidental and occasional element, especially in relation to the constitutional interest relevant in this matter, which—as said—is the yardstick against which to measure the judgment of relevance. Such interest must be identified in the effectiveness of the penal sanction. It, on one hand, results strictly connected to the principle of certainty of law—which this Court, as most recently reiterated by Judgment no. 88 of 2025, considers ""fundamental and indispensable element of the Rule of Law,” connatural both to the national legal system, and to the supranational legal system (Judgments no. 36 of 2025, no. 70 of 2024 and no. 210 of 2021)”—; on the other, it is directly inferable from Art. 27 of the Constitution, which assigns to the penalty the rehabilitative function (remaining understood, obviously, the possibility to provide for mitigation institutes or causes of non-punishability). And it is precisely such an interest that Legislative Decree no. 150 of 2022 has appropriately intended to pursue with efficiency and rigor unknown to the previous discipline.

Exactly in relation to such interest results unjustified the diversity of the treatment reserved to principal pecuniary penalties and to substitute pecuniary penalties for the profile of the regulatory reaction to their non-payment in the hypothesis of insolvency. In the two cases, in fact, the reprehensibility of the behavior of the defendant to whom the insolvency is imputable is identical, and it is so precisely in relation to the constitutional interest evidenced above.

In this sense, moreover, also the often remembered Art. 57, last paragraph, of Law no. 689 of 1981 testifies, where, providing that "[t]he pecuniary penalty is always considered as such, even if it substitutes the custodial penalty,” the irrelevance of the originality or otherwise of the pecuniary nature of the sanction is sanctioned.

Well then: the legal nature (as well as the function) unitary of pecuniary penalties—both of those principal, and of those substitute—affirmed at a regulatory level (again, Art. 57, last paragraph, of Law no. 689 of 1981) integrates an index, also of positive law (and not only logical), of the full comparability of the situations, legal and of fact, to which, in the absence of different and further profiles of distinction, also with the aim of ensuring the full coherence of the system, should follow a non-differentiated regulatory treatment for the profile that interests here.

It must be added, lastly, that, as appropriately grasped by one of the referring judges (order registered as no. 84 of the 2025 register of orders), the difference in discipline can lead to paradoxical outcomes, since an originally pecuniary penalty could be converted into a "qualitatively prison penalty” (emphasis in the original), while an originally custodial penalty could also entail only custodial forms of a domestic type.

Such profiles appear effectively to root a violation of the principle of equality referred to in Art. 3 of the Constitution for disparity of treatment between equal situations.

It is therefore necessary to declare the constitutional illegitimacy of Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure, in the part where, in case of insolvency in the payment of principal pecuniary penalties, they contemplate conversion into only substitute semi-liberty without admitting substitute house arrest, as provided for insolvency in the payment of substitute pecuniary penalties for short-term custodial sentences. The addition that follows from such a declaration does not entail any discretionary choice by this Court, but derives simply from the extension of the regulatory discipline provided for this second case, which constitutes the relevant term of comparison.

9.3.– The declaration of constitutional illegitimacy rooted in the violation of Art. 3 of the Constitution exempts this Court from addressing the challenges that assume as a parameter Art. 27, third paragraph, of the Constitution, which must therefore be considered absorbed.

for these reasons

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares the constitutional illegitimacy of Articles 102 of Law no. 689 of November 24, 1981 (Amendments to the penal system) and 660, paragraph 3, of the Code of Criminal Procedure, in the part where, in case of insolvency in the payment of principal pecuniary penalties, they do not provide for conversion also into substitute house arrest;

2) declares inadmissible the questions of constitutional legitimacy of Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure, raised, with reference to Art. 13 of the Constitution, by the Surveillance Magistrate of Bologna, with the orders indicated in the epigraph;

3) declares unfounded the questions of constitutional legitimacy of Articles 102 of Law no. 689 of 1981 and 660, paragraph 3, of the Code of Criminal Procedure, raised primarily, with reference to Articles 3 (second paragraph) and 27 (third paragraph) of the Constitution, by the Surveillance Magistrate of Bologna, with the order registered as no. 84 of the 2025 register of orders.

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

Signed:

Giovanni AMOROSO, President

Massimo LUCIANI, Reporting Judge

Valeria EMMA, Chancellor

Deposited in the Registry on April 17, 2026

 

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