JUDGMENT NO. 59

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 Articles 409 and 410 of the Code of Criminal Procedure, initiated by the Judge for Preliminary Investigations of the Ordinary Court of Verbania, in the criminal proceedings against P. P. and A. B., by order of 13 June 2025, registered under no. 179 of the 2025 register of orders and published in the Official Gazette of the Republic no. 40, special first series, of the year 2025.

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

having heard in the chambers on 12 March 2026 the Reporting Judge Maria Alessandra Sandulli;

deliberated in chambers on 12 March 2026.

Findings of Fact

1.– By order of 13 June 2025, registered under no. 179 of the 2025 register of orders, the Judge for Preliminary Investigations of the Ordinary Court of Verbania raised questions of constitutional legitimacy, with reference to Articles 3 and 24 of the Constitution, regarding Articles 409 and 410 of the Code of Criminal Procedure, insofar as they do not provide for any form of "reimbursement" in favor of a person under investigation who "has been compelled, as a result of the opposition [to the request for dismissal] filed by the complainant, to appear in the relevant procedural venue, in particular at the hearing to be held in chambers with the mandatory assistance of defense counsel [...] of choice or court-appointed," where the opposition is found to be "meritless and inadmissible."

1.1.– The referring judge, upon resolving the reservation made at the hearing scheduled following the opposition to the request for dismissal filed by the complainant P. C., reports that the latter, owner of a villa with a garden in the mountain Municipality of Macugnaga, had filed a criminal complaint against the mayor and the commander of the local police for the crimes of omission of official acts and private violence.

In particular, the referring judge states that the criminal complaint indicated that the complainant, having traveled to said Municipality on 9 July 2024 to prepare the vacation home for her elderly parents, who were due to arrive two days later, had been unable to access the property due to the presence of a sinkhole on the public road; that, despite her requests for the restoration of safe access, the mayor merely invited her to "lend a hand," while the "impediments to accessing her Villa [...] were only removed by a Carabinieri Patrol who managed to overcome the elevation difference between the public road and the property entrance by 'assembling the stones present into a sort of ramp'"; and that, only on 24 July, the municipal administration had sent a bulldozer that filled the gap with soil, "nonetheless performing a provisional and haphazard job."

The referral order adds that the public prosecutor had requested the dismissal of the proceedings, basing the non-existence of the hypothesized criminal offenses on the well-known fact of the violent cloudburst that struck the Municipality of Macugnaga, which had occupied the local administration with a security operation far broader and more complex than the omitted intervention complained of by the complainant, which allegedly excluded "any subjective element capable of supporting a reasonable assertion of criminal liability of the two suspects."

The referring judge then reports that the complainant had filed an opposition against this request for dismissal, an opposition which, "recovered following a reclamation judgment, could be examined in an adversarial proceeding with the suspects." He notes in particular that the opposing party had requested a different assessment of the municipal administration's conduct, essentially "downsizing" its commitment to safety activities and assuming that it had remained "estranged from the action requested" by the opposing party herself, as the emergency ordinance with which the Municipality intended to face the situation had not concerned the access road to her property, hence the deduced absence of an active commitment by the Municipality towards her.

The order specifies that the suspects had duly appeared in the proceedings, addressing the merits of the public prosecutor's observations.

1.2.– In the opinion of the referring judge, following the adversarial proceeding, the opposition appeared unfounded, and the public prosecutor's request for dismissal should therefore be granted. Considering, in fact, the exceptional and disastrous scope of the flood event that hit the Municipality on 30 June 2024, "the complainant's interest, however legitimate, in enjoying easy passage to her home in order to allow her elderly parents to enjoy the cool climate was evidently greatly secondary to the interest of the Macugnaga Community to see public safety conditions restored throughout the municipal territory through the commitment of its Administration." Therefore, no omission could be found regarding the general interest of the community (taking into account the funds that the municipal administration had allocated for the first safety works), nor regarding the complainant's particular case, since "even an inattentive person, taking a cue from the desperate request for help made by the Mayor, could have realized and perceived the disaster around them."

The referring judge further emphasizes the uselessness of the supplementary investigation requested by the opposing party, as it was not aimed at verifying whether the municipal administration, instead of dealing with areas in need of urgent intervention, had prioritized secondary interventions of minor importance, among which "that requested by the complainant must certainly be included." He therefore concurs with the reasoning underlying the request for dismissal, given the absence of intent and the material element of the hypothesized crimes, "the complainant not having specifically alleged the behavior that could materially have been expected from the bodies of the municipal administration in the given circumstances of time and place."

1.3.– Regarding the issue of relevance, the referring judge observes that the groundlessness of the opposition, "pursued with gross negligence" by the complainant, makes the referred question of constitutional legitimacy relevant, as requested by the defense of the accused mayor, who formally asked for the condemnation of the opposing party "to pay legal costs and non-patrimonial damages consequent to the mere subjection to the proceedings."

1.4.– As for the non-manifest groundlessness, the order remarks that this Court has already expressed its position, with judgment no. 418 of 1993, on the necessity that, despite the silence of the law, the counsel for the person under investigation must also be informed of the scheduling of the hearing in chambers ordered pursuant to Article 409, paragraph 2, of the Code of Criminal Procedure: it follows that, in the case of opposition to dismissal, the necessity of technical defense exposes the suspect to the burden of the relative costs, "provoked precisely and substantially by the initiative of the offended party."

He further adds that, although there is no automatism between the filing of the opposition and the scheduling of the hearing in chambers, as this is provided only where the opposition is not inadmissible, the admissibility check performable by the judge for preliminary investigations reveals itself to be "eminently formal." It is in fact limited, pursuant to Article 410, paragraph 1, of the Code of Criminal Procedure, to the verification that the opposing party has indicated supplementary investigations relevant to the specific case, without being able to extend to anticipated merit evaluations, given the restrictive nature of the grounds for inadmissibility.

1.5.– The challenged norms, therefore, would conflict, in the first place, with the principle of effectiveness of the right to defense protected by Article 24 of the Constitution, since, "in the absence of substantial liability on the part of the offended party" for costs and damages, the initiative of the latter, which can be promoted even without the assistance of a lawyer, "would exceed the boundaries of contributing indirectly to the protection of the mandatory nature of criminal prosecution to trespass into the confines of a merely emulative action that cannot find protection in the legal system." This is all the more so if one considers that the opposition to dismissal can be proposed by the offended party even without the assistance of a lawyer: assistance which, if requested, could in any case constitute some guarantee of the legal seriousness of the initiative.

1.6.– The referring judge also envisages the possible violation of Article 3 of the Constitution due to the intrinsic unreasonableness of the challenged regulations and the "evident asymmetry of treatment" of the person under investigation compared to the defendant against whom, at the end of the preliminary hearing, a judgment of no case to answer is pronounced because the act did not occur or because they did not commit the act. Article 427 of the Code of Criminal Procedure – invoked by the referring judge as a tertium comparationis – provides, in fact, that in such a case the judge, when requested, shall order the complainant to reimburse the costs incurred by the defendant (as well as by the civilly liable party, where there has been an appearance by a civil party) and, if there is gross negligence, also to compensate them for damages.

Such provision, as it refers only to hypotheses in which proceedings are brought for crimes prosecutable upon complaint, would be an index of the "immanence" in our system of the principle that the assertion of a right must necessarily be correlated with a "position of responsibility" of the holder of that right.

The order concludes by adding that, precisely because it is not provided for by the Code of Criminal Procedure, the liability of the offended party for having introduced the opposition procedure could not even be "recovered in an autonomous civil claim." In the specific case, therefore, the prejudice suffered by the suspects, represented by the "immediate economic damage" resulting from the "judicial liquidation of fees" to the defense counsel and the non-patrimonial damage deriving from the "unjust exposure to the chamber proceedings," would not find a possibility of relief.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, which requested that the questions be declared inadmissible or, in any case, unfounded.

2.1.– Preliminarily, the state defense objects to the inadmissibility of the questions for the failure of the referring judge to indicate "alternative normative parameters to which to anchor the relative different and allegedly satisfactory claim of the suspect following the rejection of the opposition to dismissal," leaving to this Court the qualification and determination of the remedies, generically defined as "reimbursements," with possible interference in the sphere of the legislator's discretion.

On the point of relevance, he observes, then, that the censures moved against the challenged norms and the consequent pronouncement requested of this Court "would not seem suitable to affect the outcome of the judgment on the merits, as it is not argued if and based on what criteria the Referring Judge would believe he must liquidate the quantum of costs and the alleged and indeterminate reimbursement." The State Attorney's Office further believes the reference to Article 427 of the Code of Criminal Procedure to be misleading, as such provision concerns the judgment of no case to answer, which presupposes the exercise of criminal action. He further maintains that "the thesis of the referring party connects with rigorous automatism to the pronouncement of inadmissibility/infoundation of the opposition, the condemnation to costs and the imposition of the condemnation to reimbursement, without distinguishing with regard to the reasons for inadmissibility/infoundation, and in particular without providing that the condemnation to costs and reimbursement may be prevented where the rejection is not ascribable to the fault of the requesting offended party."

The question would, therefore, be "inadmissible for failure to fulfill the obligation of adequacy-oriented interpretation," as well as "irrelevant for lack of verification of the subjective status of the opponent."

2.2.– On the merits, the President of the Council of Ministers believes that the referring judge moves from "an erroneous exegetical perspective," since the regulations for the condemnation to costs provided for proceedings that presuppose the exercise of criminal action cannot be applied to the dismissal procedure. He therefore excludes the existence of a "deficit of reasonableness such as to integrate the denounced defect," being rather in the presence of "the exercise of full discretion on the part of the legislator."

In addition, he highlights that Article 427 of the Code of Criminal Procedure, invoked as tertium comparationis, applies only to crimes prosecutable upon complaint, whereas the referring judge is vested with the cognizance of at least one crime prosecutable ex officio, with respect to which the "evaluation regarding the activation of the procedure aimed at the exercise of criminal action" remains removed from the availability of the offended party.

Finally, he excludes the injury of the right to defense, as it is averted by other remedies, such as, in this specific case, the reimbursement of legal expenses for local administrators in case of dismissal of criminal proceedings, provided for by Article 86, paragraph 5, of Legislative Decree 18 August 2000, no. 267 (Consolidated Law on the Organization of Local Entities), and, more generally, the instrument of legal aid at the expense of the State.

Considerations of Law

3.– The Judge for Preliminary Investigations of the Court of Verbania, with the order indicated in the epigraph, doubts the constitutional legitimacy of Articles 409 and 410 of the Code of Criminal Procedure, insofar as they do not provide for any form of "reimbursement" in favor of the person under investigation who "has been compelled, as a result of the opposition [to the request for dismissal] filed by the complainant, to appear [...] at the hearing to be held in chambers with the mandatory assistance of defense counsel [...] of choice or court-appointed," where the opposition is found to be "meritless and inadmissible."

The challenged norms regulate, for the part relevant here, the procedural modules that the judge for preliminary investigations must follow if the offended party files an opposition to the request for dismissal formulated by the public prosecutor. In particular, when he considers the opposition admissible, the judge schedules a hearing in chambers and gives notice to the public prosecutor, the person under investigation, and the opposing offended party (Article 410, paragraph 3, with reference to Article 409, paragraph 2, of the Code of Criminal Procedure). This Court has clarified that, despite the silence of the law, the counsel for the suspect must also be considered among the recipients of the notice provided for by the cited Article 409, paragraph 2, of the Code of Criminal Procedure (judgment no. 418 of 1993, point 2 of the Legal Considerations).

The referring party maintains that the described discipline would violate, first of all, Article 24 of the Constitution, conflicting with the principle of effectiveness of the right to defense, since the person under investigation can participate in the hearing in chambers only with the necessary assistance of court-appointed or retained defense counsel. Therefore, the suspects would be exposed to prejudice, represented, on one hand, by the "immediate economic damage" deriving from the "judicial liquidation of fees" to the defense counsel and, on the other, by the "non-patrimonial damage resulting from the unjust exposure to the chamber proceedings," without the possibility of reimbursement: and this even when – as supposedly happened in the case subject to the main proceedings – the complainant's initiative was pursued with gross negligence.

Article 3 of the Constitution would also be infringed, in terms of intrinsic unreasonableness, as the referring judge considers immanent in our system the "principle whereby the assertion of a right must necessarily be correlated with a position of responsibility [...] on the part of the holder of that right," as well as for the profile of the unjustified disparity of treatment between the person under investigation and the defendant. Article 427 of the Code of Criminal Procedure – invoked as tertium comparationis – provides, in fact, in paragraphs 1 and 2, that "[w]hen it is a matter of a crime for which proceedings are initiated upon the complaint of the offended party, with the judgment of no case to answer because the fact did not occur or the defendant did not commit it [...] the judge, when requested, shall order [...] the complainant to reimburse the costs incurred by the defendant and, if the complainant has appeared as a civil party, also those incurred by the cited or intervening civilly liable party," also establishing, in paragraph 3, that "[i]f there is gross negligence, the judge may order the complainant to compensate for damages [...]."

4.– Preliminarily, the objections of inadmissibility formulated by the President of the Council of Ministers must be dismissed.

It is useful to premise that, according to constant constitutional jurisprudence, for the purposes of the admissibility of the questions, it is sufficient that the challenged norm is applicable in the main proceedings and that the upholding decision can influence the exercise of the judicial function (among others, judgments no. 129 of 2025, no. 247 and no. 215 of 2021), at least for the profile of the argumentative path that supports the decision of the main process (ex multis, judgments no. 38 of 2025, no. 80 and no. 50 of 2024, no. 164 of 2023, no. 19 of 2022, no. 249 and no. 154 of 2021; order no. 194 of 2022). The judgment on relevance, therefore, is reserved to the referring party and, with respect to it, this Court performs a merely external control, limited to ascertaining that the motivation is not implausible, not patently erroneous, and not contradictory (judgments no. 129 of 2025, no. 160 and no. 139 of 2023, no. 192 of 2022 and no. 32 of 2021), without going so far as an autonomous examination of the elements that led the referring judge to certain conclusions, being able to criticize such evaluation only if it appears, at first sight, absolutely devoid of foundation. Whether or not such motivation is acceptable relates, then, to the merits of the question (judgments no. 163, no. 105 and no. 6 of 2024, no. 202 of 2023 and no. 139 of 2022).

4.1.– In the case under examination, the constitutional incident arose from the request, advanced by the suspect's defense counsel at the end of the chamber hearing referred to in Article 409 of the Code of Criminal Procedure, to condemn the opposing complainant "to legal costs and non-patrimonial damages consequent to the mere subjection to the proceedings" and is aimed at obtaining an additive-type pronouncement, which, by integrating the two challenged norms and assuming the discipline contained in Article 427, paragraphs 2 and 3, of the Code of Criminal Procedure as tertium comparationis, legitimizes the judge for preliminary investigations to grant such request.

The acceptance of the proposed questions of constitutional legitimacy of the challenged norms, insofar as they do not contemplate the regulation of costs and the compensation of damages within the scope of said hearing, can therefore affect at least the argumentative path that will support the decision on the recalled request of the suspect, and that is enough to establish its relevance.

It is irrelevant, moreover, the circumstance that one of the two crimes for which proceedings are brought is prosecutable ex officio. In this regard, in fact, the Court of Cassation has stated that, for the purposes of the condemnation of the complainant to the reimbursement of the costs of the proceedings and the compensation of damage in favor of the defendant, it is not necessary "that all crimes subject to the process be prosecutable upon complaint, since the costs and damages are correlated to the procedure in itself and disregard the further allegation of crimes prosecutable ex officio" (Court of Cassation, fourth criminal section, judgment 17 January-20 May 2020, no. 15500).

4.2.– The referring party has then, as explained supra (point 1.2.), argued regarding the irrelevance of the supplementary investigation requested by the opposing party and the foundation of the request for dismissal formulated by the public prosecutor, explaining why, in his opinion, the opposition had been "pursued with gross negligence."

The motivation of the order therefore passes the external test of non-implausibility to which this Court limits its control on the relevance of the proposed questions, since, if they were accepted, the decision on the application for the condemnation of the complainant to costs would presuppose the rejection of the opposition proposed by her and the acceptance of the request for dismissal formulated by the public prosecutor.

Even from this angle, therefore, the questions are admissible, not relating to their relevance, but to the merits, what was objected to by the state defense regarding the generality of the "reimbursement" that the referring party would like to see introduced in favor of the suspect and the impossibility of applying Article 427 of the Code of Criminal Procedure to the phase of preliminary investigations.

5.– The referring judge also moves from a correct hermeneutic premise in representing how "the legislator in the context of the opposition to dismissal procedure, regulated by Articles 409 and 410 [of the Code of Criminal Procedure,] does not provide for any form of reimbursement in favor of the person under investigation who has been compelled as a result of the opposition formulated by the complainant to appear [...] at the hearing to be held in chambers with the mandatory assistance of defense counsel."

The Code of Procedure, indeed, expressly regulates the liability of the complainant for procedural costs – whether they are advanced by the State or incurred by the defendant – and for the compensation of damages to the defendant and the civilly liable party both at the end of the preliminary hearing (Article 427 of the Code of Criminal Procedure) and at the end of the trial (Article 542 of the Code of Criminal Procedure), while no provision provides for a liability of the complainant for the expenses incurred by the suspect and the compensation of damages suffered by him in the phase preceding the exercise of criminal action, in the event that the proceedings are dismissed despite the opposition of the offended party to the request for dismissal.

5.1.– In light of this normative framework, the jurisprudence of legitimacy has constantly excluded the possibility of applying Article 427 of the Code of Criminal Procedure extensively, anticipating its operation to the phase of preliminary investigations, observing that "no norm or legal principle allows for pronouncement on costs in favor of a private party at the end of the chamber procedure established pursuant to Articles 409, paragraph 2, and 410, paragraph 3, of the Code of Criminal Procedure, such that the relative measure pronounced by the judge is even affected by functional abnormality, as it was issued in total lack of power" (Court of Cassation, seventh criminal section, order 18 December 2024-24 January 2025, no. 2939, and the precedents referred to therein).

The interpretative premise results, therefore, objectively consistent with the normative data and, in any case, responsive to the current orientation of the jurisprudence of legitimacy.

6.– On the merits, the questions are unfounded.

On the subject of the liability of the complainant in the event of the groundlessness of the complaint, constitutional jurisprudence is firm in asserting that, while responding to a "principle of distributive justice that the cost of the process be borne by those who have made the judge's activity necessary and has therefore given occasion to the expense for its performance (cf. judgment no. 30 of 1964), such that it is constitutionally legitimate to place the responsibility for procedural costs upon those who are hit by a criminal conviction, or the complainant whose report reveals itself clearly groundless," it cannot, however, be deduced, as a natural corollary, that such a procedural rule is "also constitutionally necessary," since it, "if in force, would have necessarily entailed, in crimes prosecutable only upon the complaint of the party, the provision of the condemnation to costs of the complainant whenever the defendant could not be condemned" (judgment no. 134 of 1993, point 2 of the Legal Considerations).

However, with reference to both the 1930 Code of Criminal Procedure and the one currently in force, this Court has recognized the legitimacy of numerous exceptions to the rigid procedural rule of failure, criticizing the automatism described above or believing the choice of the legislator to exclude it not to be manifestly unreasonable.

Among the hypotheses of exemption of the complainant from liability, it was deemed, in particular, not unreasonable "the lack of provision for the condemnation to the reimbursement of expenses advanced by the State in cases of dismissal due to the groundlessness of the report of the crime," because such a choice falls "[w]ithin the framework of a necessary balancing" between "the need to prevent and sanction (through liability for procedural costs) the filing of reckless or completely groundless reports" and "the opportunity not to discourage the exercise of the right of complaint, as would happen if the complainant were faced with the risk of condemnation to costs in every hypothesis of acquittal of the defendant" (judgment no. 134 of 1993, point 3 of the Legal Considerations).

6.1.– In other pronouncements, then, constitutional jurisprudence has delimited the obligation of the complainant to provide for the reimbursement of procedural costs advanced by the State in order to "exclude any hypothesis of objective liability [...] based on the mere fact of causality (whereby the costs fall on the party who caused them) even in the absence of any fault, carelessness, or recklessness attributable to those who exercised the right of complaint" (judgment no. 180 of 1993, point 2 of the Legal Considerations). In particular, the cited judgment declared the constitutional illegitimacy of Article 427, paragraph 1, of the Code of Criminal Procedure, insofar as, "while limiting the regime of the liability of the complainant to the sole hypotheses of acquittal because the fact did not occur or because the defendant did not commit it, it has, however, maintained a criterion of automaticity," not excluding the "condemnation of the complainant to the payment of procedural costs when it results that the attribution of the crime to the defendant is in no way ascribable to the fault of the complainant himself" (judgment no. 180 of 1993, point 3 of the Legal Considerations). Judgment no. 423 of 1993 extended the same reasoning to the hypothesis of "acquittal consequent to a situation of evidentiary doubt expressible only in the motivation but not in the operative part [when] no fault of the complainant can be found in terms of recklessness or rashness of the complaint" (point 3 of the Legal Considerations).

6.2.– All the recalled pronouncements refer to the liability of the complainant for the reimbursement of procedural costs advanced by the State. However, the jurisprudence of legitimacy has deemed it "indubitable that also [...] the costs incurred by the defendant and (eventually) by the civilly liable party are imputable only as a matter of fault," and this because "[b]esides an extensive reading of the mentioned judgments of illegitimacy, the reference to Article 427, [paragraph 2, of the Code of Criminal Procedure], to the 'cases provided for by the first paragraph,' interpolated, indeed, by the Constitutional Court, militates towards such a perspective" (Court of Cassation, second criminal section, judgment 3 October-20 December 2017, no. 56929, consistent with Court of Cassation, sixth criminal section, judgment 27 March-6 July 2009, no. 27494). After all, the reference, always contained in paragraph 2 of Article 427 of the Code of Criminal Procedure, to the possibility for the judge to compensate for costs, as an index of the need for an assessment in concreto of the liability of the complainant in having set the criminal process in motion, also speaks in this sense.

7.– The above-exposed exceptions to the general procedural rule that links the obligation of payment of costs to the succumbenza have always been traced back to the ample discretion that constant constitutional jurisprudence recognizes to the legislator in the matter of the discipline of the process and the conformation of procedural institutions, with the sole limit of the manifest unreasonableness or arbitrariness of the choices made (among the most recent, judgments no. 146, no. 76, no. 39 and no. 36 of 2025, no. 189 and no. 96 of 2024 and no. 67 of 2023). In particular, the first of the recalled pronouncements remembered that "[t]he legislator can 'differentiate the judicial protection with regard to the particularity of the relationship to be regulated' (judgment no. 39 of 2025) and is not required to ensure the principles of which to Articles 24 and 111 of the Constitution 'always in the same way and with the same effects,' provided that he respects the limit of not imposing burdens and not prescribing modalities such 'as to make the exercise of the right of defense or the performance of the procedural activity impossible or extremely difficult' (judgment no. 76 of 2025)" (judgment no. 146 of 2025, point 4 of the Legal Considerations).

7.1.– In the review of the manifest unreasonableness or arbitrariness of the choices made by the legislator, it is, therefore, necessary to consider the opposing needs underlying the challenged discipline, taking into account, on one hand, the interest to prevent and sanction, with liability for costs, the filing of reckless complaints and, on the other, the interest not to discourage the exercise not only of the right of complaint, but also of the right of opposition to dismissal on the part of the offended party.

Within the framework of the necessary balancing between the above-indicated instances of opposite sign – and in line with the reasoning followed in the cited judgment no. 134 of 1993 – the first interest, even if responding to the principle of self-responsibility in the use of procedural instruments and to the needs of procedural economy, also taking into account the progressive tendency of the legislator to expand the number of crimes prosecutable upon the complaint of the offended party, was considered by the legislator to be secondary to the second, with an evaluation that cannot be considered manifestly unreasonable, especially in light of the evolution of the role recognized to the offended party within the criminal process.

The "constant constitutional jurisprudence [in fact] looks at the offended party of the crime in the criminal process as a subject carrying a dual interest: that to the compensation for damage, which is exercised through the appearance of the civil party, and that to the assertion of the criminal liability of the author of the crime, which is exercised through an activity of support and control of the operation of the public prosecutor (judgment no. 23 of 2015); [highlighting] that the general structure placed at the base of the Code of Criminal Procedure of 1988 is inspired by the idea of the separation of judgments, criminal and civil (judgments no. 353 of 1994 and no. 192 of 1991), and looks, therefore, at the offended party as a 'possible subject of the proceedings or of the process,' and not as a main and necessary party (orders no. 254 of 2011 and no. 339 of 2008)" (judgment no. 203 of 2021, point 4.1. of the Legal Considerations, where it recalls what was already affirmed by judgment no. 249 of 2020).

The role of support and control of the work of the public prosecutor is confirmed by Article 410, paragraph 1, of the Code of Criminal Procedure, where it establishes that "[w]ith the opposition to the request for dismissal the person offended by the crime asks for the continuation of the preliminary investigations indicating, on pain of inadmissibility, the object of the supplementary investigation and the relative elements of proof." The opposition, therefore, cannot translate into a mere censure of the request for dismissal and cannot limit itself to providing a different evaluation of the cognitive elements already available, but must offer concrete cues that can constitute the object of investigations not yet performed.

The institution represents, therefore, a complementary mechanism to the control carried out ex officio by the judge for preliminary investigations, aimed at filling any investigative gaps and ensuring the completeness of the investigations, in function of the correct exercise of criminal action, whose mandatory nature is sanctioned by Article 112 of the Constitution. In this perspective, it inserts itself into the complex of powers recognized by the legislator to the offended party, so that the latter can offer its own cognitive contribution to the ascertainment of the truth from the phase of the preliminary investigations, both through an auxiliary activity of investigation and, later, in the capacity of witness.

7.2.– It must, then, be considered that the judge for preliminary investigations is required to schedule the chamber hearing referred to in Article 409, paragraph 2, of the Code of Criminal Procedure only where the opposition of the offended party is admissible, since, otherwise, Article 410, paragraph 2, of the Code of Criminal Procedure establishes that "[i]f the opposition is inadmissible and the report of the crime is groundless, the judge orders the dismissal with a reasoned decree and returns the documents to the public prosecutor."

In this regard, the jurisprudence of legitimacy has stated that "the opposition presented by the offended party is inadmissible and does not anchor the duty to schedule the chamber hearing [...] when the performance of the supplementary investigations indicated by the opposing party results to be superfluous and unsuitable to determine substantial modifications of the evidentiary framework, needing, on the contrary, for the purposes of the evaluation of admissibility, that the aforementioned investigations appear suitable to call into question the prerequisites of the request of the public prosecutor and eventually determine its rejection." It has, moreover, specified that, already in the seat of deliberation of the existence of the conditions provided for by Article 410, paragraph 1, of the Code of Criminal Procedure, the judge has "the power to criticize the contents of the opposition also in the point of pertinence and relevance of the investigations [w]here by pertinence it is meant [...] the inherence with respect to the report of the crime while by relevance it is meant the suitability to concretely affect the findings of the investigations" (Court of Cassation, sixth criminal section, judgment 13 November 2012-11 February 2013, no. 6579, and the precedents referred to therein).

If it is true that the judge is not permitted "a prognostic evaluation of the outcome of the supplementary investigation and the relative sources of proof indicated by the offended party," he has, however, "the power/duty to filter, for the purposes of its admissibility, the introductory act of the chamber sub-procedure, excluding investigative requests manifestly superfluous and/or unsuitable to determine substantial modifications of the evidentiary framework and that appear as such with immediate evidence," in order to "thin out the criminal procedure from requests not serious, merely exploratory, that would subject the person under investigation to a useless burden of his procedural position" (Court of Cassation, third criminal section, judgment 3 November 2016-3 April 2017, no. 16551).

Thus interpreted, the normative framework already provides the judging body with an instrument suitable to perform a filtering function with respect to those oppositions which, although formally proposed to solicit further investigations, result clearly pretexts, allowing to dismiss de plano, without scheduling the chamber hearing, in the presence of investigative requests that appear, with immediate evidence, not serious or merely exploratory, superfluous or in any case unsuitable to determine substantial modifications of the evidentiary framework. Moreover, precisely on this profile the order of referral results unclear, speaking of "inadmissibility on the merits" of the opposition proposed by the complainant, without however confronting itself with the jurisprudence of legitimacy recalled above.

7.3.– The choice operated by the legislator, therefore, in the absence of opposing needs of constitutional importance, not only belongs to his full discretion, but cannot even be considered unreasonable. It finds, in fact, justification in the opportunity, to be framed in the general principle of the favor querelae, not to discourage or inhibit the offended party – who does not have the capacity of a procedural party – in the exercise of all the powers that are attributed to him in order to cooperate in the completeness of the investigations and the ascertainment of the truth. Such need, moreover, results balanced by the possibility for the judge to contrast eventual abuses, declaring de plano inadmissible the investigative requests pursued with gross negligence, which, "[c]oncretizing itself in a carelessness of the highest degree and consisting in not perceiving the injustice of a claim, even though it appears patent to those who evaluate the facts with deliberation and impartiality" (Court of Cassation, fifth criminal section, judgment 16 June-21 July 2004, no. 31728), is certainly perceptible already in the phase of deliberation of the opposition.

8.– The lamented violation of Article 3 of the Constitution is not discernible even under the profile of the unjustified disparity of treatment, being sufficient to such end to note that the situations compared by the referring party are not actually superimposable among themselves.

The discipline of the liability of the complainant for the costs incurred and the damages suffered by the defendant, in the event that, at the end of the preliminary hearing, a judgment of no case to answer is pronounced because the fact did not occur or the defendant did not commit it, cannot be invoked as tertium comparationis to criticize Articles 409 and 410 of the Code of Criminal Procedure, since it places itself on a different level, in a procedural phase that presupposes the intervened exercise of criminal action by the public prosecutor.

8.1.– Already judgment no. 134 of 1993, indeed, had noted the differences "of effects, of connotations, and of stability" of the dismissal provision with respect to the judgment of no case to answer or of acquittal, observing that "as long as the dismissal of the notitia criminis is possible there is no exercise of criminal action, [and] that the dismissal provision can always be overcome by a subsequent reopening of the investigations (motivated by the simple need for new investigations)," which made "the situations in comparison not usefully comparable" (point 3 of the Legal Considerations). This Court has subsequently remarked to have "repeatedly highlighted that the differences between the decree (or the order) of dismissal and the judgment of no case to answer justify a different discipline of the contents and of the effects of the two provisions, specifying, in particular, that the first, consisting in the control by the judge for preliminary investigations on the choice of the public prosecutor not to exercise criminal action and substantiating itself therefore in a 'mere ascertainment of superfluity of the process' (judgment no. 88 of 1991), is devoid of 'stability,' as it can always be overcome by a subsequent reopening of the investigations (judgment no. 134 of 1993)" (order no. 150 of 1998).

8.2.– Such characteristics cannot be said to have changed by effect of the reform introduced by Legislative Decree 10 October 2022, no. 150 (Implementation of Law 27 September 2021, no. 134, containing delegation to the Government for the efficiency of the criminal process, as well as on the matter of restorative justice and provisions for the swift definition of judicial proceedings), which, with the abrogation of Article 125 of the provisions of implementation of the Code of Criminal Procedure, eliminated the rule of judgment based on the "groundlessness of the report of the crime because the elements acquired in the preliminary investigations are not suitable to support the accusation in court" and reformulated Article 408, paragraph 1, of the Code of Criminal Procedure, disposing that the public prosecutor presents the request for dismissal when the indicated elements "do not allow to formulate a reasonable prediction of conviction or of application of a security measure other than confiscation." The same criterion operates also for the judge of the preliminary hearing who, invested with the request for committal to trial, is called upon to choose between the decree that orders the trial and the judgment of no case to answer, on the strength of an analogous prognosis provided for by Article 425 of the Code of Criminal Procedure, also modified in the same sense.

Also recently it has been, indeed, reiterated that "in the traditional dynamics of inaction, the decisions of the judge [have] a summary and interlocutory nature, connoting the dismissal as a procedure with an agile structure" (judgment no. 93 of 2024, point 6.3. of the Legal Considerations, where the hypothesis of dismissal motivated by the particular tenuousness of the fact is configured as an exception). It has, moreover, been observed that "the preliminary hearing, in consideration of the normative evolution, has by now become a moment of 'judgment.' In fact, following the important innovations introduced, [...] such hearing has undergone a profound transformation on the plane of both the quantity and quality of evaluative elements that can find entry there, and of the powers correlatively attributed to the judge, and, finally, for what pertains to the more extended range of decisions that the same judge is called upon to adopt. It has been, therefore, deemed also by this Court a deliberative moment devoid of the 'characters of summariness,' which originally characterized it (order no. 150 of 2024; in the same sense judgment no. 335 of 2002 and order no. 269 of 2003)" (judgment no. 187 of 2025, point 5 of the Legal Considerations).

8.3.– Different is also the regime of appeals, considered that the dismissal order, a provision devoid of the characters of decision-making and finality, is appealable only with the reclamation referred to in Article 410-bis of the Code of Criminal Procedure and only for the reasons of nullity referred to in Article 127, paragraph 5, of the Code of Criminal Procedure, namely in relation to the violations of the rules of the adversarial proceeding established in paragraphs 1, 3, and 4 of the same article, and is not, as a rule, subject to recourse for cassation.

8.4.– The different treatment identified by the referring party results, therefore, justified by the heterogeneity of the situations compared.

9.– Likewise unfounded is the censure of violation of Article 24 of the Constitution.

As clarified by this Court, in fact, the need to ensure technical defense is strictly functional to the needs proper to the judgment, in which merge publicistic aspects aimed at ensuring a balanced position of the parties in litigation (order no. 405 of 2007), but "the legislator, in his discretion, can establish criteria relative [...] to the concrete modalities of exercise of the technical defense" (order no. 299 of 2002), within which range the institution of legal aid at the expense of the State, whose function is to "remove, in harmony with Article 3, second paragraph, of the Constitution, 'the difficulties of an economic order that can oppose [...] to the concrete exercise of the right [of defense]' [...], ensuring the effectiveness of the right to act and to defend oneself in court, which Article 24, second paragraph, of the Constitution expressly qualifies as an inviolable right" (judgment no. 228 of 2023, point 4.1. of the Legal Considerations).

9.1.– In line with these findings, the jurisprudence of legitimacy has stated that the lack of provision for the reimbursement of expenses to the defendant acquitted or discharged (currently circumscribed to cases different from those contemplated by Article 1, paragraph 1015, of Law 30 December 2020, no. 178, containing "State Budget for the financial year 2021 and multi-year budget for the three-year period 2021-2023") does not conflict with Article 24 of the Constitution, given that such norm guarantees to all the defense as an inviolable right in every state and grade of the procedure, but ensures only to the indigent – in coherence with the principles of which to Articles 2 and 3 of the Constitution – the means to act and to defend oneself before every jurisdiction" (Court of Cassation, first criminal section, judgment 14 November 2003-9 January 2004, no. 444, and, in the same sense, Court of Cassation, third criminal section, judgment 25 March-4 June 1991, no. 6071).

The obligation of technical assistance of the suspect in the chamber hearing referred to in Article 409, paragraph 2, of the Code of Criminal Procedure does not compromise, therefore, the effectiveness of the right to defense, since the choice on the modalities with which to give implementation to such principle, which finds, in any case, adequate safeguard, for the indigent, in the discipline of legal aid at the expense of the State, falls within the ample discretion of the legislator.

10.– In conclusion, the questions of constitutional legitimacy of Articles 409 and 410 of the Code of Criminal Procedure, raised with reference to Articles 3 and 24 of the Constitution, are unfounded.

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Articles 409 and 410 of the Code of Criminal Procedure, raised, with reference to Articles 3 and 24 of the Constitution, by the Judge for Preliminary Investigations of the Ordinary Court of Verbania, with the order indicated in the epigraph.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 12 March 2026.

Signed:

Giovanni AMOROSO, President

Maria Alessandra SANDULLI, Reporting Judge

Roberto MILANA, Director of the Chancellery

Deposited in the Chancellery on 27 April 2026

The anonymized version is, in the text, conform to the original