JUDGMENT NO. 58
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
JUDGMENT
in the proceedings regarding the constitutional legitimacy of Article 554-ter of the Code of Criminal Procedure, introduced by Article 32(1)(d) of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government to improve the efficiency of the criminal trial, as well as regarding restorative justice and provisions for the expedited conclusion of judicial proceedings), initiated by the Ordinary Court of Siena, Criminal Section, sitting as a single judge, in the criminal proceedings against P.A.A. via the referral order of February 11, 2025, registered as no. 41 in the 2025 register of orders and published in the Official Gazette of the Republic no. 11, first special series, of the year 2025.
Having considered the intervention of the President of the Council of Ministers;
having heard the reporting judge, Francesco Viganò, in chambers on March 12, 2026;
having deliberated in chambers on March 12, 2026.
Legal Reasoning (Facts)
1.– By order of February 11, 2025 (reg. ord. no. 41 of 2025), the Ordinary Court of Siena, Criminal Section, sitting as a single judge, raised – with reference to Articles 3(1) and (2), 111(2), 112, and 117(1) of the Constitution, the latter in relation to Article 6(1) of the European Convention on Human Rights – questions of constitutional legitimacy regarding Article 554-ter of the Code of Criminal Procedure, introduced by Article 32(1)(d) of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government to improve the efficiency of the criminal trial, as well as regarding restorative justice and provisions for the expedited conclusion of judicial proceedings), "insofar as it fails to provide that the provision of Article 422 of the Code of Criminal Procedure shall apply, insofar as it is compatible, or, alternatively, insofar as it fails to provide that the judge may order, ex officio, the taking of evidence for which there is evident decisiveness for the purposes of a judgment of non-suit."
1.1.– The referring court is currently presiding over the pre-trial appearance hearing against a defendant charged with the theft of 2,000 euros in cash, contained in a wallet forgotten by the owner in a shopping cart outside a supermarket.
Based on the criminal complaint filed by the victim and summary information provided by supermarket employees, the referring judge states:
– that the owner of the wallet reported leaving the supermarket at approximately 6:30 PM;
– that, upon realizing the wallet was forgotten, he telephoned the supermarket around 7:00 PM to report the incident;
– that a supermarket employee found the wallet in a cart left outside shortly thereafter;
– that the employee returned the wallet to the owner, who – having left the supermarket again – noticed the disappearance of the 2,000 euros and reported it via a second telephone call to the supermarket;
– that the judicial police acquired footage from the video surveillance system located outside the establishment, which – according to a note transmitted to the public prosecutor – showed that at approximately 6:55 PM, an individual approached the cart, moved away to enter a vehicle, and returned to the cart a few moments later;
– that, once identified via the vehicle’s license plate, the person in question – the defendant in the instant case – stated during the interrogation following the notice of the conclusion of preliminary investigations that he had indeed taken the wallet from the cart, moved it into his vehicle solely to check, using the internal light, if there were any documents to identify the owner, and then returned it to the cart where he had originally found it upon realizing there were no documents;
– that the defendant’s counsel had requested, in a brief filed after the notification of the notice of conclusion of preliminary investigations, that the entire CD containing all video surveillance footage between 6:30 PM and 6:55 PM be acquired into the public prosecutor's file, which, in his view, could have corroborated the defendant's version of events;
– that, as it stands, the judicial police note was accompanied only by "some isolated frames."
1.2.– Regarding relevance, the referring judge identifies "a clear incompleteness of the material collected in the preliminary investigation file."
It would, in fact, be the "film document [...] 'retained' by the judicial police, and not the frames extrapolated by them," that would constitute the documentary evidence which the judge at the pre-trial appearance hearing should evaluate, together with the other documents in the preliminary investigation file, to "examine the validity of the accusation." The same document would also act "as evidence, at the current stage of the proceedings, potentially decisive for the purposes of a judgment of non-suit, in relation to both the conduct held by the current defendant in the time segment in which he accessed his vehicle, and the events occurring in the preceding timeframe from 6:30 PM to 6:55 PM."
In the pre-trial phase, however, the judge cannot remedy "such a manifest gap," not having the power to order an evidentiary integration, unlike the power granted to the judge at the preliminary hearing under Article 422 of the Code of Criminal Procedure.
In the absence of such evidentiary integration, on the other hand, the judge could not decide whether to issue a judgment of non-suit or an order for the continuation of the trial before a different judge "without incurring, in either case, entirely unreasonable consequences": a) on one hand, it would not be "reasonably feasible [...] to proceed with the trial via a judgment of non-suit based on such a discovered evidentiary gap," because such a judgment would foreseeably be revoked "if the subsequent acquisition of the video footage [...] led to the useful development of the trial, pursuant to Article 554-quinquies of the Code of Criminal Procedure"; b) on the other hand, the alternative of continuing the trial, which could result as "entirely superfluous and unnecessary," if the "evidentiary contents of the video footage in question" did not allow for a "reasonable prospect of conviction" of the defendant, would not appear reasonable either.
1.3.– Regarding the manifest non-groundlessness of the questions, the referring judge notes that "the knowledge base of the judge at the pre-trial appearance hearing [...] is constituted exclusively by 'the totality of the documents of the preliminary investigations conducted by the investigating body, as well as documents flowing into the trial file pursuant to Article 431 of the Code of Criminal Procedure'" (reference is made to this Court’s judgment no. 179 of 2024).
The impossibility of filling "manifest gaps in the evidentiary material" would conflict with multiple constitutional principles.
1.3.1.– Referring first to Article 3(1) of the Constitution, the referring judge denounces the "manifest unreasonableness" of the differentiated treatment reserved for the powers of the judge at the pre-trial appearance hearing, compared to the evidentiary integration powers granted to the preliminary hearing judge under Article 422 of the Code of Criminal Procedure, in relation to evidence for which decisiveness for the purposes of a judgment of non-suit appears evident.
The necessary completeness of the evidentiary framework at the preliminary hearing (in relation to which judgment no. 335 of 2002 of this Court is cited) would be "strictly linked to the task, incumbent upon [the preliminary judge], to perform a preliminary verification regarding the necessity of holding a trial, as a guarantee for the correct exercise of criminal action by the prosecuting authority, thus acting as a 'filter' against unjustified trials and, in any case, pursuing deflationary and simplification goals." Precisely this goal would unite the preliminary hearing and the pre-trial appearance hearing, to which the law has assigned, among other things, the function of a "'filter' against unjustified trials," with "deflationary and simplification goals," through a "preventive examination of the necessity of holding a trial" (again, judgment no. 179 of 2024 of this Court is cited).
The "evident symmetry" between the two hearings, in relation to the "penetrating examination of the merits of the accusation" that the judge is called upon to perform in both cases, would be "interrupted and severed, in a completely unreasonable manner, at the moment in which only the first judge, and not the second, has been given the possibility to acquire evidentiary elements where their decisiveness for the purposes of a judgment of non-suit appears evident."
Nor would it justify this choice by the "leaner" nature of the "preliminary examination" entrusted to the judge at the pre-trial appearance hearing, compared to that "provided for by Articles 416 et seq. of the Code of Criminal Procedure, regarding the validity and completeness of the criminal action" (reference is made to the explanatory report of Legislative Decree no. 150 of 2022). This is because "the 'lean' connotation" should still "remain in harmony with the need to 'make the criminal proceeding faster and more efficient,' the ratio that animates the entire reform of the criminal process."
The lack of provision for a power of evidentiary integration, "where it concerns the acquisition of evidence whose decisiveness for the purposes of a judgment of non-suit appears evident," would be, in this sense, "manifestly unreasonable, as it is clearly dysfunctional with respect to the goals of efficiency and reduction of the trial workload pursued by the legislature of Legislative Decree no. 150 of October 10, 2022," resulting in "an evident prolongation of the timing of the entire criminal proceeding." Such a gap would in fact impose "the holding of a further procedural segment, the trial, destined to end with an acquittal and, therefore, clearly superfluous." And this would be all the more unreasonable in view of the extension – operated by Legislative Decree no. 150 of 2022 – of the catalog of crimes for which criminal action is exercised by direct citation to judgment, in the forms of Article 552 of the Code of Criminal Procedure.
1.3.2.– The censured rule would also violate the principle of substantive equality, under Article 3(2) of the Constitution, considering that a "rebalancing intervention by the judge aimed at supplementing" the investigative shortcomings of either party was considered, albeit in a different procedural context such as the trial, in "harmony with the objective of eliminating factual inequalities set by Article 3(2) of the Constitution," as "the 'equality of arms' of the parties normatively enunciated [...] may sometimes not find concrete verification in factual reality" (this Court’s judgment no. 111 of 1993 is cited).
1.4.– The duty of completeness of the preliminary investigations, which, as this Court observed some time ago with reference to the preliminary hearing, constitutes a corollary of the principle of mandatory criminal prosecution under Article 112 of the Constitution, would also be violated.
This duty would have a dual function: it would ensure the complete and exhaustive identification of the evidentiary framework, in view of the "recognition of the defendant's right to be judged, upon his request, with the abbreviated proceeding" (this Court’s judgment no. 115 of 2001 is cited), and would act, on the other hand, as a "bulwark against possible practices of 'apparent' exercise of criminal action, which, initiating judicial verification based on investigations that are too superficial, incomplete, or truncated, would result in an unjustified aggravation of the trial workload" (this Court’s judgment no. 88 of 1991 is cited).
The need for completeness of preliminary investigations would be "significantly assessable, during the preliminary hearing, precisely because 'the judge is granted the power of integration concerning means of evidence,' being able to 'take ex officio evidence for which there is evident decisiveness for the purposes of a judgment of non-suit (Article 422 of the Code of Criminal Procedure)'" (this Court’s judgment no. 224 of 2001 is cited).
1.5.– Finally, the censured regulation would conflict with the principle of reasonable duration of the trial under Article 111(2) of the Constitution, "enshrined at the supranational level by Article 6(1) ECHR, as well as by the interpretation formed on such an article by the Strasbourg Court."
The violation of this principle would be identifiable when, the petitioner argues, "the effect of prolongation of procedural times determined by a specific regulation is not supported by any logical need and proves instead to be devoid of any legitimate ratio for justification" (references are made to Court judgments no. 113 of 2023, no. 12 of 2016, no. 159 of 2014, no. 63, and no. 56 of 2009). This would be the case of the censured regulation, which, by precluding the judge from acquiring "an evidentiary element [...] decisive for the purposes of a judgment of non-suit," would impose "the celebration of a superfluous trial, because it is destined to end with an outcome, such as an acquittal, which is already anticipatable during the pre-trial appearance hearing, through the adoption of a judgment of non-suit."
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, requesting that the questions be declared inadmissible or, in any event, unfounded.
2.1.– The questions would first be inadmissible due to deficient reasoning regarding relevance, which the referring court would have failed to "indicate in detail" and which could not "be considered implicit."
2.1.1.– More specifically, the judge a quo would not propose the lack of decisive evidence for the purposes of a judgment of non-suit, but would rather wish to apply Article 422 of the Code of Criminal Procedure "for a purpose that is not its own: namely, to overcome a doubt functional not to arrive at a judgment of non-suit, but functional to carry out a more verified indictment." Article 422 of the Code of Criminal Procedure, therefore, "could not in any case find application, unless the rule were bent to an improper function."
2.1.2.– Secondly, the evidence that the judge would believe necessary to take would not fall "within the catalog of evidence listed by Article 422 of the Code of Criminal Procedure, nor would the judge take the trouble to clarify exactly what said evidence would consist of, limiting himself to referring to a CD already in the possession of the judicial police but not poured in its materiality into the public prosecutor's file, in which only some frames are inserted."
2.1.3.– In any case, "the profile relating to the completeness of the investigations, understood as the obligation of the prosecuting body to carry out all investigations so as not to effectively elude the mandatory nature of criminal action," would not be guaranteed by Article 422 of the Code of Criminal Procedure, but by Article 421-bis of the Code of Criminal Procedure. This last rule, however, would not come into consideration, as the doubts of the judge a quo "invest a theme entirely different from that of the completeness of investigations or evidence."
The issues, in reality, would pertain to the completeness of the investigation file, due to the failure to attach the video recording to the public prosecutor's file. The judge "should have, therefore, questioned himself about the consequences of such an omission or the existence of normative solutions suitable for guaranteeing that completeness," evaluating preliminarily "whether the omitted attachment to the investigation documents of an IT medium containing a video recording, ritually acquired during the investigations, imposed deciding only based on the frames in the acts" (regarding the consequences of the failure to deposit the documentation relating to the preliminary investigations together with the request for indictment, reference is made to the Court of Cassation, Fifth Criminal Section, judgment of March 17-May 26, 2021, no. 20855; First Criminal Section, judgment of May 4, 2018-January 30, 2020, no. 4071; First Criminal Section, judgment of March 12-June 26, 2014, no. 27879).
2.2.– On the merits, the issues would be unfounded, since the legislature’s choice to exclude the applicability to the pre-trial appearance hearing of some rules provided for the preliminary hearing (including Article 422 of the Code of Criminal Procedure) would be justified by reason of the different procedural junctures in which one and the other hearing are placed, as well as the different methods of access to the trial provided according to the type of crime for which one is proceeding: for some crimes (more serious) the legislature provided for the exercise of criminal action by request for indictment and, in that context, the check of the preliminary judge with respect to the indictment; for other crimes, of lesser severity, the legislature excluded the preliminary check of the judge, allowing direct citation to judgment by the public prosecutor. In these cases, the judge at the pre-trial appearance hearing would only be tasked "with ascertaining the inappropriateness of the proceeding, already arrived at the trial phase, continuing."
Moreover, once the proceeding has "already transitioned to the trial phase, a regression in the investigation phase, which would derive from the application of Article 421-bis of the Code of Criminal Procedure (the rule whose non-application the judge substantially denounces, although he erroneously invokes Article 422 of the Code of Criminal Procedure) would be entirely improper and inappropriate, also in relation to the principle of speed and efficiency of the rite that the judge a quo invokes."
Furthermore, the performance of investigative activity "before the same trial judge (albeit a different physical person), moreover with forms different from those proper to the trial, would also be a completely asystematic choice and a source of complication and lengthening of the proceeding, certainly not of speed."
Finally, the theme of "mandatory criminal prosecution" would be completely extraneous to the issues raised, as one is in a context where "the proceeding has already arrived at the trial phase and, consequently, the public prosecutor has already fulfilled that obligation."
Legal Reasoning (Law)
3.– With the order indicated in the epigraph, the Court of Siena, Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy of Article 554-ter of the Code of Criminal Procedure, "in the part where it does not provide that the provision of Article 422 of the Code of Criminal Procedure shall apply, insofar as it is compatible, or, alternatively, in the part where it does not provide that the judge may order, also ex officio, the taking of evidence for which there is evident decisiveness for the purposes of a judgment of non-suit."
In summary, the referring court suspects that the lack of provision for the power to take such evidence by the judge at the pre-trial appearance hearing, regulated by Articles 554-bis and 554-ter of the Code of Criminal Procedure, determines the violation of:
– Article 3(1) of the Constitution, due to the manifest unreasonableness of the disparity of treatment between the regulation under examination and that of the preliminary hearing, within which Article 422 of the Code of Criminal Procedure confers on the judge the power in question;
– Article 3(2) of the Constitution, since the failure to attribute to the judge at the pre-trial appearance hearing the power of evidentiary integration that the preliminary hearing judge possesses pursuant to Article 422 of the Code of Criminal Procedure would not allow the first judge to restore the dutiful equality of arms between the parties, in the face of possible investigative shortcomings of the public prosecutor;
– Article 112 of the Constitution, because the current regulation would not allow the judge to order the integration of investigations conducted by the public prosecutor, thus prejudicing the defendant's right to be judged with the abbreviated rite and, at the same time, failing to provide remedies against practices of "apparent" exercise of criminal action in the face of "superficial, incomplete, or truncated" investigations, susceptible of resulting "in an unjustified aggravation of the trial workload";
– the principle of reasonable duration of the trial under Article 111(2) of the Constitution and Article 117(1) of the Constitution in relation to Article 6(1) of the ECHR, determining a prolongation of procedural times devoid of any legitimate ratio for justification.
4.– The State Attorney’s Office excepts a defect of reasoning on relevance under three distinct profiles. First, the referring court would not propose the lack of decisive evidence for the purposes of a judgment of non-suit, but would intend instead to apply Article 422 of the Code of Criminal Procedure in order to "carry out a more verified indictment": this purpose, however, would be extraneous to the ratio of Article 422 of the Code of Criminal Procedure itself. Secondly, it would not be understood what the evidence that the referring court would hope to be able to take during the pre-trial appearance hearing should consist of. Finally, the issues would not even pertain to the profile of the completeness of the investigations carried out by the public prosecutor, to which Article 421-bis of the Code of Criminal Procedure refers, since the gap lamented by the referring court would pertain simply to the absence, in the public prosecutor's file, of the IT medium relating to a video recording already ritually acquired during the investigations.
The exception is not founded in any of these profiles.
The judge a quo, in fact, describes in detail the event on which he is called to pronounce, and clarifies how the censured provision prevents him from acquiring the full video recording, which in his view would be necessary to eventually pronounce a judgment of non-suit regarding the defendant.
This is sufficient to ensure the relevance of the questions, at the measure of the control of mere non-implausibility of the referring court's reasoning, performed by this Court according to its consolidated jurisprudence (among others, judgments no. 21 of 2026, point 4.1., no. 10 of 2026, point 13.1.3., no. 213 of 2025, point 2 of the Legal Reasoning, and no. 154 of 2025, point 2 of the Legal Reasoning). There is no doubt, in fact, that the judge at the pre-trial appearance hearing has no power of ex officio integration of the evidentiary platform – constituted by the documents contained in the trial file and that of the public prosecutor – on which he is called to express the evaluations pursuant to Article 554-ter of the Code of Criminal Procedure, in order to establish, in particular, whether the elements acquired allow a reasonable prospect of conviction. The hoped-for pronouncement of acceptance of the questions raised would allow him, instead, through the exercise of the powers pursuant to Article 422 of the Code of Criminal Procedure, to acquire (evidently pursuant to Article 234 of the Code of Criminal Procedure) the entire video recording, which in his view could result relevant to corroborate the defensive version proposed by the defendant, and in any case to exclude a reasonable prognosis of conviction for the same. This without the power, attributed to the judge for the preliminary hearing by Article 421-bis of the Code of Criminal Procedure, to order further investigations to the public prosecutor – a power that the referring court, coherently, does not invoke – coming into question here.
5.– On the merits, the questions formulated with reference to Article 3(1) of the Constitution are not founded, first of all.
5.1.– The referring court laments the unreasonableness of the disparity of treatment between the regulation of the pre-trial appearance hearing and that of the preliminary hearing – both aimed at ensuring a judicial filter to the exercise of criminal action by the public prosecutor – under the specific profile of the judge's power to take evidence that appears evidently decisive for the purposes of a judgment of non-suit: a power that the preliminary hearing judge possesses, precisely, but not the one at the pre-trial appearance hearing.
5.2.– For the purposes of examining this censure, it is useful first to recall that, according to the orientation constantly adopted by the jurisprudence of this Court, "the legislature enjoys, in matters of regulation of the trial and conformation of procedural institutes, a wide discretion, with the sole limit of manifest unreasonableness or arbitrariness of the choices made (among many, judgments no. 76, no. 39, and no. 36 of 2025, no. 189 and no. 96 of 2024, no. 67 of 2023)" (judgment no. 146 of 2025, point 4 of the Legal Reasoning). This is particularly true for what concerns the regulation of the criminal trial, which is "the fruit of delicate balances between principles and interests in natural reciprocal conflict, so that every corrective intervention on a single provision, aimed at ensuring wider protection for one of such principles or interests, risks altering the overall balance of the system"; which explains why, in this matter, the Court "is accustomed to exercising special caution in the scrutiny of censures [...] founded, in particular, on Article 3 of the Constitution" (judgment no. 230 of 2022, point 3.1. of the Legal Reasoning).
5.3.– Still in limine, it should be noted that the issues under examination do not call into question the fundamental legislative choice, made by the Code of Criminal Procedure since its entry into force, to identify two large parallel tracks for the "ordinary" exercise of criminal action against adults (outside special rites and proceedings before the Justice of the Peace): the first, reserved in principle for proceedings that have as their object only crimes of lesser severity, characterized by direct citation to judgment of the defendant by the public prosecutor; the other, reserved for proceedings involving more serious crimes or in any case of more complex verification, characterized instead by the intermediate filter of the preliminary hearing, which attributes to a judge the task of evaluating whether the extremes for the indictment of the defendant subsist.
This fundamental choice is not, in fact, refuted by the introduction, in 2022, of the filter of the pre-trial appearance hearing in direct citation proceedings.
Practice had shown that, in a very high percentage of cases, the trials introduced by direct citations ended with acquittals; which induced the legislature to introduce a specific corrective, different from the preliminary hearing and placed "downstream" of the citation to judgment, to avoid the celebration of useless trials, which cause prejudice – together – to the efficient administration of criminal justice and to the constitutional rights of the defendants.
In particular, the Commission appointed in 2021 by the then Minister of Justice to "elaborate reform proposals in the matter of the trial and criminal sanctioning system, as well as in the matter of statute of limitations for the crime, through the formulation of amendments to the Bill A.C. 2435, containing Delegation to the Government for the efficiency of the criminal trial and provisions for the expedited conclusion of judicial proceedings pending at the courts of appeal" (the so-called Lattanzi Commission) proposed the introduction of a " 'filter' hearing, aimed at verifying the actual necessity of celebrating the trial, not only and not so much for deflationary purposes, but above all because the trial for those forced to undergo it constitutes already in itself a 'punishment,' which must not be inflicted if the reasons for it are lacking." The Commission, in support of the proposal, underscored the "very high number of acquittal outcomes" that were recorded in direct citation proceedings, with an "incidence of convictions on completed [trials], in the years 2015-2019, [...] equal on average to 41% of the total"; and supported the "logical-systemic need to entrust to the preventive control of the judge the correct application, by the public prosecutor, of the judgment criterion underlying the decision to exercise criminal action" (page 31 of the final report).
The subsequent Legislative Decree no. 150 of 2022, based on the directive criteria contained in delegation law no. 134 of 2021, introduced into the procedural code Articles 554-bis to 554-quinquies, which regulate a new "Pre-trial appearance hearing following direct citation," entrusting to the court the task of performing, in chambers, a series of activities preliminary to the trial. Among such activities are included the possible transformation of the rite in case of request for alternative definitions of the proceeding by the defendant; the verification whether, based on the documents contained in the public prosecutor's file and in that for the trial, formed by the public prosecutor himself, there subsists a cause for dismissal which requires the immediate definition of the trial; and, above all, the subsistence of the prerequisites for a judgment of non-suit, where "the elements acquired do not allow a reasonable prospect of conviction" (Article 554-ter(1) of the Code of Criminal Procedure).
In all these hypotheses, the pre-trial appearance hearing is worth today to prevent the holding of a superfluous trial, thus avoiding a useless commitment of criminal justice, which – as this Court recently observed – is a "scarce resource, which implies huge costs borne by all the people involved, in material and 'existential' terms (judgment no. 149 of 2022, point 5.1.1. of the Legal Reasoning), as well as important economic burdens for the entire community" (judgment no. 41 of 2024, point 3.9. of the Legal Reasoning).
5.4.– The knot that this Court is now called upon to untie concerns the choice of the 2022 legislature not to equip the judge of the pre-trial appearance hearing with the power, which the judge of the preliminary hearing possesses instead, to take also ex officio the evidence for which there is evident decisiveness for the purposes of a judgment of non-suit. It is a matter, more specifically, of establishing whether such a choice must be considered not manifestly unreasonable, in consideration of the different structure and function of the two hearings, or if, instead, the similarities between the two hearings, regarding the object of the judgment and the evidentiary platform on which such judgment is based, are such as to make the signaled disparity of treatment unsustainable, in the light of an overall evaluation – in particular – "of the rights, duties, and constitutional interests at stake," as well as of the ratio of the regulation and of instances of "systemic coherence" of the same (judgment no. 54 of 2026, point 9.1.).
5.5.– Moving precisely from these last reasons, it is necessary to recognize the identity of the evaluations that the two judges are called to perform pursuant to, respectively, Articles 425(1), (3), and (4) and 554-ter(1) of the Code of Criminal Procedure; as well as the identity of the evidentiary material on which such evaluations are founded, namely the investigative documents performed by the public prosecutor, possibly integrated by defensive investigations and by documents taken with evidentiary incident. These elements of homogeneity have been punctually highlighted also by this Court, in a recent pronouncement – to which the referring court refers – where it was held that Article 34(2) of the Code of Criminal Procedure dictated a "justifiably differentiated regulation to the extent that it provides for the incompatibility to participate in the judgment only for 'the judge who issued the conclusive provision of the preliminary hearing' and not also for the judge of the pre-trial appearance hearing" (judgment no. 179 of 2024, point 6 of the Legal Reasoning).
Nonetheless, it must be observed that the 2022 legislature did not at all intend to configure the pre-trial appearance hearing as a sort of duplicate of the preliminary hearing; and has, on the contrary, taken care to borrow, in configuring its regulation, only some of the rules that regulate that hearing. This for the evident purpose of conserving to the pre-trial appearance hearing characters of greater leanness, and of thus avoiding paradoxically – rather than a saving of energy for the criminal system, and of human and financial costs for all the people involved – a further slowing down of the times for the definition of trials.
On the other hand, the extension of the regulation pursuant to Article 422 of the Code of Criminal Procedure to the pre-trial appearance hearing would entail a series of systemic repercussions of no small moment, which the legislature could certainly consciously take into account in the exercise of its own discretion, but which must induce this Court to adhere to that "special caution" in the scrutiny under Article 3 of the Constitution of the procedural norms recommended by the precedents cited earlier.
In this regard, it is necessary to actually consider that the filter introduced by the 2022 legislature with respect to direct citation proceedings operates downstream of the vocatio in iudicium, not already before it, as happens in cases in which the preliminary hearing is held. The pre-trial appearance hearing positions itself, therefore, as a mere segment of a procedural macro-phase in which the proceeding has already arrived – by effect of the exclusive initiative of the public prosecutor – at the seat physiologically tasked with the formation of evidence, in the adversarial proceeding between the parties and with the guarantees of the adversarial model.
In this seat, the performance of evidentiary activity by the judge with the methods provided for the preliminary hearing would appear at least dystonic with respect to the rules of the trial. Article 422(3) of the Code of Criminal Procedure provides, in fact, that the hearing and interrogation of the persons who can be heard pursuant to paragraph 2 are conducted directly by the judge, while the public prosecutor and defenders must limit themselves to asking questions through the judge. Such methods are, therefore, very different from those ordinarily prescribed within the trial, in implementation of the principles under Article 111 of the Constitution.
Still, in the hypothesis in which the evidence taken did not reveal itself, ex post, decisive for the judgment of non-suit, the trial should in any case continue. In that case, however, if it were declarative evidence, the relative taking report would not flow back into the trial file, but would remain in the public prosecutor's file pursuant to Article 433 of the Code of Criminal Procedure, with the consequent necessity of repeating the taking of evidence in the trial. Which would entail a further effect of lengthening the overall timing of the definition of the trial judgment, linked to the mere necessity of taking twice, and with different methods, the same evidence in the same procedural macro-phase.
5.6.– As for the reflections of the diversity of regulation on the rights of the defendant, and in particular on his inviolable right to defense (which the referring court does not evoke as an autonomous parameter, but which cannot but be considered in the evaluation on the reasonableness or otherwise of the disparity of treatment denounced: supra, 5.4.), it must be noted that the defendant will always have the right to have taken in the subsequent trial hearings the evidence that he deems necessary for his defense (provided it is not prohibited by law or manifestly superfluous or irrelevant): including those that, in hypothesis, the judge of the pre-trial appearance hearing could have deemed decisive for the purposes of the judgment of non-suit. And when it comes to declarative evidence, the taking will happen at this point according to the rules proper to the trial (Article 498 of the Code of Criminal Procedure and following), which guarantee to the defense that protagonist role that it could not play if the evidence were taken pursuant to Article 422(3) of the Code of Criminal Procedure.
Under this specific profile, on the other hand, the defense finds itself today in the same situation in which it was before the introduction of the pre-trial appearance hearing, when its right to "defend oneself by proving" (judgment no. 41 of 2024, point 3.6. of the Legal Reasoning, and therein further references) was entirely concentrated in the trial seat; the only difference being, today, represented by the supplementary chance, offered by the new procedural institute, of exiting more rapidly from the criminal circuit when already the evidence collected by the public prosecution during the preliminary investigations appears in itself unsuitable to allow a reasonable prospect of conviction.
Nor should it be neglected that the possible acquittal judgment consequent to the taking of evidence for the defense requested by the defendant in the trial, rather than in the pre-trial appearance hearing, has a more favorable effect for the defendant himself, resulting in an assessment suitable to pass into res judicata and not, instead, in a mere pronouncement of non-suit, revocable at any time (Article 554-quinquies of the Code of Criminal Procedure).
5.7.– All these considerations, in short, lead to excluding that the failure to attribute to the judge the power to take evidence during the pre-trial appearance hearing, parallel to that with which the preliminary hearing judge is endowed, integrates a hypothesis of unreasonable disparity of treatment, censurable at the measure of Article 3(1) of the Constitution.
6.– It does not appear either to this Court that the non-recognition of such a power to the judge of the pre-trial appearance hearing places itself in contrast with the principle of equality in its "substantive" dimension under Article 3(2) of the Constitution, and more in particular with the duty of the Republic to remove the obstacles of economic and social order that limit in fact the freedom and equality of citizens.
According to the referring court, the recognition of the power in question would be necessary to ensure an effective equality of arms between accusation and defense, according to the principles already enunciated in judgment no. 111 of 1993, where it was affirmed that "the end of the justice of the decision can require a rebalancing intervention by the judge suitable to supply for the shortcomings of one of them, thus avoiding undeserved acquittals or convictions" (point 8 of the Legal Reasoning).
However – disregarding here every evaluation on the enduring sustainability of such affirmations, also in light of the incisive modifications that have interested, meanwhile, Article 111 of the Constitution, by means of Constitutional Law no. 2 of November 23, 1999 (Insertion of the principles of the fair trial in Article 111 of the Constitution) – the consideration that the judge's power to supply ex officio for possible gaps or insufficiencies of the defendant's technical defense for effect of obstacles of economic and social order, which place him in a situation of objective inferiority compared to the public prosecutor, remains in reality intact, appears decisive. Such a power will, in fact, be able to unfold both during the trial, when the judge can always order, also ex officio, the taking of new means of evidence pursuant to Article 507 of the Code of Criminal Procedure, where this results absolutely necessary (and, therefore, also in the interest of the defendant), and during the carrying out of the abbreviated judgment, by force of Article 441(5) of the Code of Criminal Procedure, which confers on the judge the power to take, also ex officio, the elements necessary for the purposes of the decision.
7.– Neither is the question raised with reference to Article 112 of the Constitution founded.
7.1.– In the opinion of the referring court, the principle of mandatory criminal prosecution would be called into question by the lack, in the person of the judge of the pre-trial appearance hearing, of the power to take evidence ex officio in the hypothesis of investigative gaps by the public prosecutor, in violation of the principle of "tendential completeness" of the preliminary investigations enunciated by the jurisprudence of this Court starting from judgment no. 88 of 1991; a principle that the judge a quo evokes here, more in particular, in reference to the omitted acquisition of evidence "for which decisiveness appears evident for the purposes of a judgment of non-suit."
7.2.– Now, there is no doubt that the principle under Article 112 of the Constitution implies the obligation, borne by the public prosecutor, to carry out tendentially complete investigations (thus the "progenitor" judgment no. 88 of 1991, point 4 of the Legal Reasoning, as well as judgments no. 184 of 2009, point 3.5. of the Legal Reasoning, no. 224 of 2001, point 3 of the Legal Reasoning, and no. 115 of 2001, points 4.2. and 4.4. of the Legal Reasoning).
On the point, however, some clarifications appear opportune.
The current constitutional system assigns to the public prosecutor a position of independence in the exercise of his functions precisely to enable him to fulfill his duty to exercise criminal action "without fear or favour": that is, sheltered from the danger of undue conditioning that might induce him not to exercise criminal action against those who have instead committed crimes, or even to unjustly prosecute innocent people. As this Court affirmed some time ago, the mandatory nature of criminal action is functional to the equal application of criminal law to all citizens, in order to prevent the risk of a "discriminatory exercise of criminal action (or inaction)" (again, judgment no. 88 of 1991, point 2 of the Legal Reasoning; on the link between mandatory criminal action and guarantee of equality between citizens, judgment no. 84 of 1979, point 3 of the Legal Reasoning; on the necessity that "criminal action is not unduly omitted," judgment no. 121 of 2009, point 7 of the Legal Reasoning; on the link between mandatory criminal action and independence of the public prosecutor, judgments no. 111 of 1993, point 6 of the Legal Reasoning, no. 88 of 1991, point 2 of the Legal Reasoning, as well as, under the vigor of the 1930 code, judgments no. 96 of 1975, point 2 of the Legal Reasoning, and no. 190 of 1970, point 2 of the Legal Reasoning).
In its turn, however, a non-discriminatory decision on the exercise or non-exercise of criminal action presupposes, "upstream," that the public prosecutor has carried out, in the single concrete case, tendentially complete investigations.
This for a plurality of reasons.
First of all, negligent, or even intentionally incomplete investigations that result in the decision not to exercise criminal action would obviously violate the ratio underlying Article 112 of the Constitution, of ensuring the equal application of criminal law to all citizens.
On the other hand, the exercise of criminal action supported, however, by incomplete investigations would reveal itself, as already highlighted by judgment no. 88 of 1991, only "apparent," because already at the start unsuitable to result in the judicial assessment of the crime. Such a scenario could also mask, in concrete terms, evasions of the obligation to ensure the non-discriminatory application of criminal law, with the aim of subtracting someone from conviction for a crime effectively committed.
Even where, then, there was no intent by the public prosecutor to favor the suspected author of a crime, the exercise of criminal action in the absence of adequate investigations would not only give rise to an "objectively superfluous" process (judgment no. 88 of 1991, point 3 of the Legal Reasoning), because destined to a more than probable acquittal outcome; but, would even result in a process productive of useless prejudices to interests and rights of sure constitutional relief: from the avoidable waste of energy of the criminal justice system, which has limited resources to cope with the necessary timeliness with its functions of protection of the conditions for an orderly and peaceful social coexistence; up to the unreasonable compression of the constitutional rights (personal and patrimonial) of the defendants, whose existence is always disrupted by the pendency of a criminal proceeding, which often determines also serious prejudices to their professional and relational life.
Precisely the conquered and by now widespread awareness of similar prejudices to rights and interests of high constitutional relevance, connected to an imprudent exercise of criminal action, renders today unsustainable the idea, which this Court had in the past deduced from Article 112 of the Constitution, of a generalized favor actionis, according to which "in doubtful cases" criminal action should be "exercised and not omitted" (thus the judgment no. 88 of 1991 cited multiple times, point 3 of the Legal Reasoning).
The principle of mandatory criminal prosecution, instead, must be now correctly understood – conformably to what is univocally enshrined by now in many places of the procedural code (Articles 408(1), 425(3), and 554-ter(1) of the Code of Criminal Procedure) – in the sense that the public prosecutor has the duty to carry out in every single case accurate investigations, which allow him to evaluate whether the original notitia criminis is effectively supported, at least at the state of the documents, by evidence of such consistency and coherence as to make reasonably predictable the conviction in judgment of the defendant, to the evidentiary standard of beyond any reasonable doubt. Only in case of an affirmative answer will the public prosecutor have the duty to exercise criminal action: in the opposite case imposing itself the opposite rule of renunciation to such exercise (with the consequent obligation to ask for the dismissal of the crime report that remained not sufficiently corroborated, despite the performance of effective and diligent investigations).
What precedes necessarily implies the duty incumbent upon the same public prosecutor (expressly enunciated, moreover, by Article 358 of the Code of Criminal Procedure) to search ex officio also for the evidentiary elements capable of refuting the original accusatory hypothesis (on the point, order no. 96 of 1997), as well as the duty to attentively consider the defensive allegations that the person submitted to investigation has deemed to prospect to him during the investigations themselves, or after the notice of their conclusion. Duties, all, that derive from the need to place at the base of the exercise of criminal action an accusatory hypothesis epistemicly solid, which will be able to say itself such only where it has already adequately confronted itself with reasonable alternative hypotheses, including those possibly prospected by the same person submitted to investigation.
On the other hand, only tendentially complete investigations, inclusive of the evidence in favor of the defendant, are suitable to place the latter in the best conditions to exercise his right to opt consciously for an alternative rite (thus, again, judgment no. 88 of 1991, point 4 of the Legal Reasoning), which is an integral part of his right to defense (among many, judgments no. 2 of 2025, point 6.1. of the Legal Reasoning, no. 174 of 2022, point 3.3. of the Legal Reasoning and therein further references): an outcome, this, that the current procedural system has an evident interest in incentivizing, in function of the overall efficiency of the system. It is, in fact, essentially based on the evidentiary platform constituted by the evidence collected by the public prosecutor that the defendant will have to make his own evaluations on the opportunity to define the judgment with abbreviated rite, to ask for the application of the penalty pursuant to Article 444 of the Code of Criminal Procedure, not to oppose the penal decree of conviction, or even to ask for the suspension of the proceeding with probation; and fundamentally based on that same evidentiary platform the judge will have – in the abbreviated judgment – to decide on the defendant's responsibility and eventually apply a penalty, as well as – in the other hypotheses mentioned – to evaluate the subsistence of the conditions for a dismissal pursuant to Article 129 of the Code of Criminal Procedure and, if the case, the appropriateness of the proposed penalty. In any case, taking into account also the evidence in favor of the defendant, including those that pertain to the graduation of his possible responsibility, that the public prosecutor has (dutifully) searched for.
In short, a "dutiful" criminal action according to the logic of Article 112 of the Constitution is only a criminal action exercised with prudence and responsibility, based on complete investigations, which have not neglected the evidentiary elements in favor of the defendant.
7.3.– All that is laid out, it does not seem, however, to this Court that it is constitutionally necessary to attribute to the judge of the pre-trial appearance hearing the power recognized to the preliminary judge by Article 422 of the Code of Criminal Procedure, for the purpose of providing remedy to the pathology of preliminary investigations in which the public prosecutor has in concrete terms omitted to search or deepen individual elements of evidence in favor of the defendant.
Remaining firm that, in the course of the preliminary investigations or after the closing of the same, the suspect can perform defensive investigations (Articles 319-bis to 391-decies of the Code of Criminal Procedure) or ask the public prosecutor for the performance of investigation acts (Article 415-bis(3) of the Code of Criminal Procedure), in direct citation proceedings, in effect, to such a pathology one can provide timely remedy during the trial, which is here usually destined to be defined in the arc of one or few hearings: in the course of which the defense will have the right to ask for the taking of evidence on the circumstances that the public prosecutor has omitted to deepen. Without, therefore, that it is strictly necessary – for the purpose of providing remedy to the sketchiness of the investigations, and therefore to the vices that afflict the same promoting of the criminal action, in the sense just specified, besides that for the purpose of guaranteeing the full unfolding of the defendant's right to defense – to anticipate to the pre-trial appearance hearing such fulfillment, with all the systemic repercussions of which it was said supra, 5.5.
This holds a fortiori in the hypothesis, which comes specifically into consideration in the process a quo, in which that of which the defense complains is not – taking a closer look – a defect of the investigations in favor of the defendant, but simply the omitted pouring into the public prosecutor's file of the full findings of an activity effectively carried out by the judicial police. Also in this case, in fact, such findings will be able to be acquired by the trial judge in the course of the hearing immediately following.
Nor do such gaps in the public prosecutor's activity prejudice the defendant's right to evaluate with full awareness whether to ask for the abbreviated rite, given that he will in any case have the possibility to subordinate the relative request to an "evidentiary integration": a request that the judge must today welcome "if, taken into account the documents already acquired and usable, the evidentiary integration requested results necessary for the purposes of the decision and the abbreviated judgment realizes in any case a procedural economy, in relation to the trial instruction" (Article 438(5) of the Code of Criminal Procedure, as modified by Legislative Decree no. 150 of 2022).
It must, therefore, be excluded that the lack of provision in the person of the judge of the pre-trial appearance hearing of the power to take evidence for which there is evident decisiveness for the purposes of a judgment of non-suit, in case of incompleteness of the public prosecutor's investigations (or in any case of incompleteness of the findings of the investigation activities in the public prosecutor's file), determines of itself the violation of the principle of mandatory criminal prosecution under Article 112 of the Constitution.
8.– Neither are the questions raised with reference to Article 111(2) of the Constitution and Article 117(1) of the Constitution, the latter in relation to Article 6(1) of the ECHR, finally, founded.
8.1.– This Court recently affirmed that the reasonable duration of the trial is declined as much by Article 111 of the Constitution, as by Article 6 of the ECHR, "as an objective canon of efficiency of the administration of justice and as a right of the parties" (judgment no. 111 of 2022, point 7.1. of the Legal Reasoning), underscoring also that "regulations that aim to ensure [...] a prompt definition of the litigations, far from responding to a logic of 'judicial efficientism that privileges in statistical key the quantity to the detriment of the quality of the judicial decisions,' [...], constitute implementation of a precise constitutional duty," since the reasonable duration constitutes "an identity connotation of the justice of the process" (judgment no. 74 of 2022, point 5.1. of the Legal Reasoning).
On the other hand, this same Court has multiple times observed that the notion of reasonable duration of the process (in particular criminal) is "always the fruit of a particularly delicate balance between the multiple – and among themselves conflicting – public and private interests involved by the process itself": which "imposes a special caution in the exercise of the control, based on Article 111(2) of the Constitution, of the constitutional legitimacy of the procedural choices made by the legislature, to which it competes to identify the solutions most suitable to conjugate the objective of a process capable of reaching its natural scope of the assessment of the fact and of the possible ascription of the relative responsibilities, in full respect of the guarantees of the defense, with the requirement also essential of reaching such objective in a lapse of time not excessive. So that a violation of the principle of the reasonable duration of the process under Article 111(2) of the Constitution will be able to be identifiable only where the effect of prolongation of the procedural times determined by a specific regulation is not supported by any logical requirement, and reveals itself instead to be devoid of any legitimate ratio for justification (among many, judgments no. 12 of 2016, no. 159 of 2014, no. 63 and no. 56 of 2009)" (judgment no. 260 of 2020, point 10.2. of the Legal Reasoning, recalled by judgment no. 116 of 2023, point 6.1. of the Legal Reasoning).
8.2.– In the light of such criteria, it must be excluded that the failure to attribute to the judge of the pre-trial appearance hearing the power to take evidence decisive for the purposes of the judgment of non-suit determines a vulnus of the evoked parameters, not being able to be held that from it follows a prolongation of the procedural times devoid of any justifying ratio.
If well can one hypothesize that the taking of evidence in pre-trial seat is capable of invalidating radically the accusatory perspective, rendering thus superfluous the carrying out of trial hearings, it is also true that nothing guarantees ex ante that things happen effectively in this way; and that it is rather well possible that the taking of evidence in pre-trial seat – entailing as a rule the postponement to another hearing – translates, ex post, into an overall lengthening of the times for the definition of the process, even more where the evidence itself must be then repeated during the trial (supra, 5.5.).
The pre-trial appearance hearing, on the other hand, conserves in a general way a precise deflationary ratio of the procedural times and of the costs ("existential" and financial) determined by processes that in the past had in any case to be celebrated, and that today are instead susceptible of being avoided where the judges of the hearing in speech make careful use of their power-duty to pronounce judgment of non-suit, when the evidentiary material present in the files of the public prosecutor and for the trial appears in itself insufficient to support a reasonable prospect of conviction.
Where this material appears, instead, suitable to allow such a prospect, the legislative choice to consider the function of the pre-trial appearance hearing exhausted, and to leave space directly – without further delays – to the ordinary unfolding of the trial, where the defendant will have every possibility to exercise his own right to "defend oneself by proving" from the accusations addressed to him by the public prosecutor, cannot be considered unreasonable.
for these reasons
THE CONSTITUTIONAL COURT
declares unfounded the questions of constitutional legitimacy of Article 554-ter of the Code of Criminal Procedure, introduced by Article 32(1)(d) of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, delegating the Government to improve the efficiency of the criminal trial, as well as regarding restorative justice and provisions for the expedited conclusion of judicial proceedings), raised, with reference to Articles 3(1) and (2), 111(2), 112, and 117(1) of the Constitution, the latter in relation to Article 6(1) of the European Convention on Human Rights, by the Ordinary Court of Siena, Criminal Section, sitting as a single judge, with the order indicated in the epigraph.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on March 12, 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Reporting Judge
Roberto MILANA, Director of the Chancellery
Deposited in the Chancellery on April 27, 2026
The anonymized version is consistent, in the text, with the original