JUDGMENT NO. 66

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 147 of the Penal Code, raised by the Supervisory Court of Bologna in the supervisory proceedings concerning M. G., by order dated April 30, 2025, registered under no. 123 of the register of orders 2025 and published in the Official Gazette of the Republic no. 26, first special series, of the year 2025.

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

having heard the reporting Judge Stefano Petitti in the chambers on March 23, 2026;

having deliberated in the chambers on March 23, 2026.

Legal Findings of Fact

1.– By order dated April 30, 2025, registered under no. 123 of the register of orders 2025, the Supervisory Court of Bologna raised questions of constitutional legitimacy with reference to Articles 3(2), 24, 27(3), 111(2), and 117(1) of the Constitution (the latter in relation to Article 6 of the European Convention on Human Rights) regarding Article 147 of the Penal Code, in the portion where it does not provide that "[i]f, following the investigations carried out, where necessary also by means of expert opinion, it results that the psychophysical state of the convict is such as to prevent the conscious submission to the execution of the sentence and that such state is irreversible, the judge shall issue an order to stay the proceedings or an order of no case to answer.”

2.– The Supervisory Court of Bologna premises that the proceedings concern a person sentenced to three years and six months of imprisonment for numerous offenses condensed into twenty-eight counts of indictment. At the time of the issuance of the imprisonment order, the convict had filed an application for home detention at the family residence; however, during the course of the proceedings, the situation worsened due to the death of his wife, who was caring for him as he suffered from debilitating illnesses, as well as a progressive deterioration of the applicant's health, who was subsequently placed in a private care facility for the elderly, where he received sporadic visits from his daughter.

The convict’s defense counsel thus submitted the existence of a situation of radical incompatibility between their client’s conditions and any form of sentence execution, including extra-mural modalities. The individual is, in fact, suffering from cognitive and ambulatory deficits (the referring court cites the medical certification and reports documenting the clinical picture), expresses no residual social danger, is currently housed in a facility for the elderly, is incapable of participating in re-socialization pathways attributable to probation with social services under Article 47 of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the execution of restrictive and limiting measures of freedom); the application of home detention itself would be incompatible with his current residency in the same facility, which provides him with the necessary continuous and specialized medical assistance.

3.– The Supervisory Court of Bologna reports, in support of its assessments regarding the impossibility of pursuing the purposes of execution, the findings of the socio-familial investigation conducted by the Office of External Penal Execution, based on the interview with the convict’s daughter, which led the Office itself to request the suspension or deferral of the sentence.

The referral order then recalls the conditions provided for granting mandatory postponement (Art. 146 of the Penal Code) and optional postponement (Art. 147 of the Penal Code) of the execution of the sentence (moreover, recently amended by Art. 15(1)(a) and (b) of Decree-Law no. 48 of April 11, 2025, containing "Urgent provisions regarding public safety, protection of personnel in service, as well as victims of usury and the penitentiary system,” converted into Law no. 80 of June 9, 2025), of the deferral or suspension of execution for psychic infirmity occurring to the convict (Art. 148 of the Penal Code), as well as "humanitarian” or "derogatory” home detention (Art. 47-ter(1-ter) of the Penitentiary Act), an institution understood in this Court’s judgment no. 99 of 2019 as a variably configurable instrument that allows for safeguarding the right to health of the detainee and the defense needs of the community.

3.1.– Having stated this, the referring court observes that in the case submitted for its examination, the institution of mandatory postponement of sentence execution under Article 146(3) of the Penal Code is not applicable, as the convict is in a situation of serious psychophysical infirmity, and not of a disease so advanced that it no longer responds to available treatments and curative therapies.

In the opinion of the a quo judge, the convict is, rather, in the condition that justifies the optional postponement of sentence execution under Article 147(1)(2) of the Penal Code, namely a condition of serious physical infirmity, with no concrete danger of the commission of crimes by the same. This also renders the alternative measure—less favorable than postponement—of home detention under Article 47-ter(1) of the Penitentiary Act inoperative.

In ordering the optional postponement of the execution of the sentence, the Supervisory Court of Bologna highlights that it would have to set a deadline, upon the expiration of which it would be necessary to proceed to a re-evaluation of the conditions supporting further postponement, although the case contemplated by number 2) of Article 147(1) of the Penal Code, unlike the other hypotheses enumerated in the same provision, does not identify such a deadline. The necessity of setting a deadline for the postponement would prove unreasonable where, as in the case at hand, the cause of the postponement derives from a condition of serious infirmity that is neither transitory nor susceptible to improvement, but rather irreversible: the supervisory court would thus be forced to cyclically repeat verifications regarding the persistence of the health reasons legitimizing the postponement of execution until the death of the convict.

The referral order therefore complains that the system does not provide for "a hypothesis of renunciation of the execution of the sentence” when one is faced with a stable impossibility to proceed with execution "due to the irreversible incapacity of the person” to be subjected to the sentence itself.

3.2.– The referring court believes that the framework of the questions presented is comparable to that relating to the defendant’s capacity to participate in the trial, outlined in Articles 70 to 72-bis of the Code of Criminal Procedure, with reference to the so-called "problem of the eternally triable,” which was the subject of this Court’s judgments no. 23 of 2013 and no. 45 of 2015 and, most recently, judgment no. 65 of 2023, which declared the constitutional illegitimacy of Article 72-bis(1) of the Code of Criminal Procedure, in the part where it referred the definition of proceedings for the irreversible incapacity of the defendant by means of a judgment of no case to answer or a judgment of no proceedings to the irreversible "mental” state, rather than to the "psychophysical” one (and, consequently, the constitutional illegitimacy of Articles 70(1), 71(1), and 72(1) and (2) of the Code of Criminal Procedure, in the part where they referred to the "mental” state, rather than the "psychophysical” one).

In the opinion of the a quo judge, the current regulations, by not providing that—in the face of the ascertainment of a state of irreversible psychophysical incapacity regarding the convict—the judge can declare no proceedings to be held due to the impossibility of the execution itself, rather than merely deferring the execution with continuous, periodic re-evaluations, would be subject to the same remarks regarding intrinsic unreasonableness, violation of the right of defense, and violation of the reasonable duration of the proceedings, already established with reference to the procedural incapacity of the defendant under the cited Articles 70-72-bis of the Code of Criminal Procedure.

3.3.– The referral order then dwells on the comparability of the situations of the defendant’s incapacity to be subjected to trial and the convict’s incapacity to be subjected to penal execution. Justifying a different treatment of these situations based on the need for the inevitability of the sentence in the face of the convict’s proven liability, which is instead lacking for the defendant, would fail to take into account that, in any case, the execution towards a non-dangerous convict suffering from irreversible psychophysical incapacity is, in fact, deferred until their death.

Conversely, in the presence of such irreversible psychophysical incapacity, both for the defendant and the convict, an analogous participation of the interested party in the proceedings concerning them occurs, even though they lack the faculties of "consciousness, thought, perception, expression” valued by the cited constitutional jurisprudence and to be preserved even for the execution-treatment procedure.

The instrument of sentence execution postponement would, rather, be adequate for cases characterized by the presence of natural deadlines or reversible conditions. Furthermore, the deferral of the execution of the sentence correlates with the postponement of the commencement of the time necessary for its extinction (Article 172(5) of the Penal Code), an effect that, for the a quo judge, would transform convicts irreversibly struck by psychophysical incapacity into "eternally executable” persons.

3.4.– The referring court also states the reasons for the conflict of the challenged provision with the convict’s right of defense in the supervisory procedure, which is outlined as a "further piece of criminal jurisdiction,” where they are devoid of the capacity to stand trial. It also envisages the vulnus caused by the provision in question to the principle of reasonable duration of the supervisory process (a principle also operating in the context of the execution of a judgment, according to the jurisprudence of the European Court of Human Rights), which inevitably entails, where conditions of irreversible incapacity of the convict exist and until the death of the same, a succession of measures deferring the execution of the sentence without ever reaching a definition of the substantive thema decidendum.

3.5.– The referral order therefore identifies, as a constitutionally adequate solution to remedy the profiles of constitutional illegitimacy exposed, the establishment of regulations in the matter, by means of an additive pronouncement, modeled on the provisions of Article 72-bis of the Code of Criminal Procedure, which, in the event of the convict's established and irreversible incapacity to be subjected to penal execution, would allow declaring that no proceedings are to be held for the execution of the sentence.

3.6.– As for the relevance of the questions, the referring court observes that the convict is in conditions of serious psychic and physical infirmity, which justify the optional postponement of the execution of the sentence under Article 147(1)(2) of the Penal Code, and that there is no concrete danger of the commission of crimes by the same; it would be arbitrary to set a deadline for the postponement, since said infirmity conditions are irreversible; the hoped-for declaration of constitutional illegitimacy, with the indicated additive scope, would allow for definitively statuting the impossibility of executing the sentence and avoiding the useless future reiteration of similar judgments. A constitutionally oriented interpretation would also not be pursuable, except by ordering a postponement of the execution of the sentence "until the death of the convict, or until the persistence of the conditions of incapacity,” which, however, would constitute a substantial circumvention of the law.

3.7.– The Supervisory Court of Bologna also dwells on the adequacy of the proposed solution not only with reference to the needs of protecting the individual against the punitive claim of the State but also with respect to the defense needs of the community. Postponing the execution of the sentence for someone in conditions of serious infirmity cannot be adopted if there is a concrete danger of the commission of crimes, so the acceptance of the raised questions would not undermine public security profiles.

The investigations to be carried out on the irreversible psychophysical state of the convict, such as to prevent conscious submission to the execution of the sentence, should have the same cogency as those carried out to verify whether the defendant is able to consciously participate in the trial.

The final order of no case to answer would in any case take the form of an order and would possibly be revocable in the event of any unforeseen changes in the convict’s condition, such as to cause them to regain the capacity to be subjected to penal execution.

Finally, if the convict suffering from irreversible infirmity conditions still denotes profiles of social danger, and therefore the prerequisites legitimizing the postponement of the sentence do not exist, the solution would be given by the "humanitarian” home detention under Article 47-ter(1-ter) of the Penitentiary Act, which can be granted, in fact, in a surrogate manner, since the suitability of such a remedy is not in discussion here from the profile of Article 27(3) of the Constitution with reference to a person in such conditions.

4.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, asking that the questions be declared manifestly inadmissible and/or unfounded.

4.1.– The President of the Council of Ministers excepts the manifest inadmissibility of the questions for multiple reasons.

4.1.1.– The questions would first of all be irrelevant as "the useful effect intended by the legislation, in the terms also enunciated by living law, is already guaranteed to the convict who, as it stands, is housed in a nursing home and is under a sentence suspension regime.”

The State Attorney’s Office highlights, in this regard, that "had the judge ordered the suspension of the execution of the sentence, in the terms expressly provided for by Article 147(2) of the Penal Code, the convict would not have suffered any prejudice, and the only burden would have derived for the offices, due to the need to periodically verify health conditions and danger.” Therefore, the a quo judge did not focus on what benefit the convict would derive from the acceptance of the questions, finding themselves already in the condition of not being subjected to the execution of the sentence.

4.1.2.– The questions would then be manifestly inadmissible because the referring court asks this Court to "insert a new figure of sentence extinction, or a substitute for it, not typified and remitted to the free appreciation of the execution judge.” It would, in any case, be improper to transpose to the level of sentence execution the outcome otherwise achievable in the procedural sphere with reference to Articles 70-72 of the Code of Criminal Procedure, as the former cannot conclude with an "order of no case to answer.”

4.1.3.– Furthermore, in the additive insertion expressly requested by the referring court, there is no corrective measure suitable for preventing the adoption of the provision should there be a concrete danger of the commission of crimes by the convict (as provided by Art. 147(4) of the Penal Code), which the Supervisory Court of Bologna instead discusses in the arguments of the referral order.

4.1.4.– In the opinion of the President of the Council of Ministers, the position in which the convict finds himself in the a quo proceedings would find adequate protection precisely in the application of home detention under Article 47-ter of the Penitentiary Act, within the contours defined by this Court’s judgment no. 99 of 2019, an application allowed to the supervisory court even when mandatory or optional postponement of sentence execution could be ordered under Articles 146 and 147 of the Penal Code.

In any case, according to the State’s defense, even if the denounced regulatory void were identified, it should be filled through an intervention of the legislator.

4.1.5.– The questions would, finally, be manifestly inadmissible due to a lack of motivation with reference to the evoked constitutional parameters, in particular regarding Articles 3, 24, and 27 of the Constitution, while the motivation referable to Articles 111(2) and 117(1) of the Constitution (the latter evoked in relation to Article 6 of the ECHR) would be entirely irrelevant.

4.2.– On the merits, the State’s defense concludes for the manifest groundlessness of the raised questions.

Regarding Article 3 of the Constitution, the analogy with procedural incapacity would not be relevant, being "entirely incomparable the condition of the subject subjected to a trial, in relation to which a condition emerges such as to prevent forever the recovery of a capacity to participate consciously in that trial, compared to the circumstance in which an incapacity occurs to participate consciously in the treatment path inherent in the execution of a sentence.”

There would exist, in any case, in the system, as already noted, "alternative instruments aimed at allowing a balance between the execution of the sentence and the onset of pathological situations, such as the provision of specific penitentiary institutions or specific sections (Article 65 of Law [no. 354] of 1975) for subjects in certain conditions and such as home detention, expanded by Article 47-ter of Law 354/1975 and by the judgment no. 99 of 2019.”

The same challenged Article 147 of the Penal Code "allows the execution judge called to decide a wide margin of appreciation aimed at balancing the needs of the community and those of the convict in health conditions not compatible with the execution of the sentence.”

There would, therefore, be no regulatory void to be filled with the hoped-for additive pronouncement, since the possibility of deferring the execution of the sentence sine die is already provided, with periodic re-evaluations that guarantee judicial control over the effective persistence of the obstructive conditions.

On the contrary, according to the State’s defense, the introduction of an institution that allows for declaring no proceedings to be held for the execution of the sentence in the terms indicated by the a quo judge would risk compromising the principle of the inevitability of the penal sanction, opening the way to subjective and heterogeneous evaluations remitted to the individual execution judge.

Finally, the relevance of the references made by the referring court to the jurisprudence of the ECtHR on execution is refuted in the act of intervention, which concerns execution aimed at obtaining the protected good of life, also declinable in the penal sphere, and in any case, in the specific case, already guaranteed by the reference legislation.

The solution proposed by the a quo judge, in the opinion of the President of the Council of Ministers, would be aimed solely at achieving "an effect of simplification of the activity of the judicial authority, freed from the need to periodically re-examine the condition of the detainee under the profile of health conditions and danger.”

Legal Reasoning

5.– With the order indicated in the epigraph (reg. ord. no. 123 of 2025), the Supervisory Court of Bologna raises, with reference to Articles 3(2), 24, 27(3), 111(2), and 117(1) of the Constitution (the latter in relation to Article 6 of the ECHR), questions of constitutional legitimacy of Article 147 of the Penal Code, in the part where it does not provide that "[i]f, following the investigations carried out, where necessary also by means of expert opinion, it results that the psychophysical state of the convict is such as to prevent the conscious submission to the execution of the sentence and that such state is irreversible, the judge shall issue an order to stay the proceedings or an order of no case to answer.”

5.1.– The referring court premises that the proceedings concern a subject sentenced to the penalty of three years and six months of imprisonment, who, at the time of the issuance of the imprisonment order, had filed an application for detention at the family home. Following the death of the convict’s wife, who was assisting him as he was suffering from debilitating illnesses, as well as a progressive deterioration of the applicant’s health, the defense counsel suggested the existence of a situation of radical incompatibility of the client’s conditions with any form of sentence execution, even in extra-mural modalities.

The person is in fact suffering from cognitive and ambulatory deficits, does not express any residual social danger, is currently placed at a facility for the elderly, is incapable of carrying out re-socializing type paths, and the application of home detention itself would not be compatible with the current residency in the same facility that provides them with the necessary continuous and specialized medical assistance.

5.2.– Excluding the existence of conditions for the granting of mandatory postponement of the execution of the sentence, under Article 146(3) of the Penal Code, as the convict is in a situation of serious psychophysical infirmity, and not of a disease so advanced that it no longer responds to available treatments and curative therapies, the referring court believes that this person finds themselves, rather, in the condition that justifies the optional postponement of the execution of the sentence under Article 147(1)(2) of the Penal Code, or in a condition of serious physical infirmity, there being no concrete danger of the commission of further crimes. A circumstance, this, which makes the recourse to the alternative measure—less favorable than the postponement—of home detention under Article 47-ter(1) of the Penitentiary Act also impracticable.

However, the referring court observes, the optional postponement of the execution of the sentence requires that a deadline be set, upon the expiration of which it would be necessary to proceed to a re-evaluation of the conditions that justify further postponement; this would be unreasonable where, as in the case under its examination, the cause of the postponement derives from a condition of serious infirmity that is neither transitory nor susceptible to improvement, but rather irreversible, as, in such cases, the supervisory court is forced to cyclically repeat the checks on the persistence of the health reasons that legitimize the postponement of execution until the death of the convict.

The referral order complains, therefore, that the system does not provide for "a hypothesis of renunciation of the execution of the sentence,” when one is in the presence of a stable impossibility to proceed with the execution "due to the irreversible incapacity of the person” to be subjected to the sentence itself, just as instead provided by Articles 70 to 72-bis of the Code of Criminal Procedure in case of incapacity to participate in the trial on the part of the defendant.

It would therefore be reasonable, respectful of the right of defense and the re-educational function of the sentence, as well as the principle of the reasonable duration of the supervisory process, that, in the face of the ascertainment of a state of irreversible psychophysical incapacity regarding the convict, the judge be allowed not to defer the execution of the sentence, with continuous re-evaluations of that state, but to declare no proceedings to be held for the execution itself.

6.– It is first necessary to examine the multiple exceptions of inadmissibility of the questions formulated in the act of intervention of the President of the Council of Ministers.

These are exceptions that can all be overruled.

6.1.– The State defense has excepted that the questions would not be relevant because the Supervisory Court of Bologna could have made application of the hypothesis of optional postponement of the execution of the sentence under Article 147(1)(2) of the Penal Code, without thus causing any prejudice to the convict.

The referring court, however, declares itself that the conditions for the applicability of the postponement of the execution of the sentence under Article 147(1)(2) of the Penal Code exist, given the condition of serious physical infirmity of the convict, not perceiving the concrete danger of the commission of further crimes by the same. It is precisely the application of the challenged provision in the case at hand, therefore, that would be the cause of the vulnera denounced by the Supervisory Court of Bologna, as it would be necessary, in the opinion of the referrer, to set a deadline, upon the expiration of which one should proceed to a re-evaluation of the conditions that may justify a further postponement; this even if the condition of serious physical infirmity of the interested party is not transitory nor susceptible to improvement, but rather irreversible.

The a quo judge, therefore, deems unreasonable, as well as contrary to the convict’s right of defense and the principles of the re-educational purpose of the sentence and the reasonable duration of the supervisory process, the very repeated, inevitable application of the postponement by virtue of Article 147(1)(2) of the Penal Code. The assumption of the State defense, according to which no concrete prejudice for the convict derives from the application of this provision, concerns, therefore, the merits of the questions.

6.2.– The State Attorney General then objects that the referral order would have incurred an erroneous regulatory reconstruction of the case, since the situation in which the convict finds themselves would find adequate protection in the application of home detention under Article 47-ter(1-ter) of the Penitentiary Act, as delineated by this Court’s judgment no. 99 of 2019.

In this regard too, the referral order carries a precise motivation on the relevance of the questions, in adherence to the pertinent regulatory framework, refuting the thesis that the alternative measure of home detention under Article 47-ter(1-ter) of the Penitentiary Act can be applied, which is less favorable than the postponement of execution, as there is no concrete danger of the commission of crimes by the convict.

The a quo judge thus leverages a constant jurisprudence of legitimacy according to which, in the presence of one of the conditions for the postponement, mandatory or optional, of the execution of the sentence (being in the case the hypothesis of Article 147(1)(2) of the Penal Code extant), the judge cannot apply, as an alternative to the requested postponement, the less favorable measure of home detention under Article 47-ter(1-ter) of the Penitentiary Act, if not through sufficient motivation in order to the judgment of residual social danger of the convict; this due to the diversity of effects, as much under the profile of the state of execution of the sanction as under the corresponding profile of the status libertatis of the convict, between the postponement of execution and the implementation of the latter in the form of domestic detention (in this sense, for example, Court of Cassation, First Penal Section, judgments Dec 21, 2021-Jan 11, 2022, no. 451, April 1-May 31, 2021, no. 21355, and Feb 21-May 26, 2020, no. 15848).

In the presence of such a consolidated orientation of the Court of Cassation, the reasons that determine the prejudicial nature of the questions raised with respect to the definition of the main process are well illustrated, and doubts cannot be expressed regarding the exactness of the interpretation proposed by the referrer (among many, judgments no. 22 of 2024 and no. 85 of 2020).

6.3.– The Attorney General deduces, then, that in the additive insertion requested by the referrer, the negative assumption that prevents the adoption of the order of no case to answer if there is a concrete danger of the commission of crimes by the convict is not mentioned (as provided by Article 147(4) of the Penal Code).

This exception is also unfounded, since from the reading of the referral order and the petitum formulated, it clearly emerges that the questions of constitutional legitimacy invest Article 147 of the Penal Code, in the hypothesis that the execution of the sentence restricting personal freedom can be deferred, and therefore in the presence of the general conditions of adoptability of such a measure (among which, therefore, also that of the fourth paragraph of Article 147 of the Penal Code, which postulates the non-existence of the concrete danger of the commission of crimes), towards those who are in irreversible conditions of serious psychophysical infirmity. The referrer certifies, moreover, that the convict does not express any residual social danger.

6.4.– The defense of the President of the Council of Ministers excepts again that the a quo judge invokes an additive intervention that would introduce a new figure of sentence extinction, or an atypical procedural outcome consisting of the "order of no case to answer,” all to remedy a hypothetical regulatory void that should in any case be filled through an intervention of the legislator.

The exception is equally unfounded, as the Supervisory Court of Bologna recognizes in the system, in particular in Article 72-bis of the Code of Criminal Procedure, introduced by Article 1(22) of Law no. 103 of June 23, 2017 (Amendments to the Penal Code, the Code of Criminal Procedure, and the Penitentiary Act), assumed as tertium comparationis for identity of ratio, a constitutionally adequate solution for defining the procedure, capable of replacing the discipline with which Article 147 of the Penal Code regulates the hypothesis of the postponement of execution when the convict is in an irreversible state of serious psychophysical infirmity, of inserting itself into the regulatory fabric consistently with the logic pursued by the legislator.

The questions raised by the referrer appear, indeed, well defined also in comparative terms and the requested additive solution is precisely indicated by comparison with the tertium comparationis constituted by the definition of the procedure for the irreversible incapacity of the defendant, both regarding the reasonableness of the different regulatory treatment of the conditions of the defendant and the convict, and regarding the implications on the right of defense of the latter in the supervisory procedure, as well as on the principles of the re-educational purpose of the sentence and the reasonable duration of the proceedings.

It would, in any case, be up to this Court, should the questions be well-founded, to identify the most suitable pronouncement for the reductio ad legitimitatem of the challenged provision, nor does the proposition of possible alternative models of regulation of the case result sufficient to pose procedural obstacles to the examination of the questions (among the most recent, judgments no. 146 and no. 53 of 2025, no. 46 of 2024).

6.5.– The arguments concerning the discretion recognized to the legislator pertain to the merits and not to the admissibility of the questions of constitutional legitimacy, since they imply an examination of the ratio and the application prerequisites of the challenged norm (for example, judgments no. 248, no. 224, and no. 137 of 2020, no. 35 of 2017).

6.6.– Finally, even the exception concerning the omitted motivation of the order with reference to the evoked constitutional legitimacy parameters cannot be accepted, since the a quo judge refers to them, discharging the argumentative burden necessary so that the proposed censures can be evaluated on the merits.

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

The referrer moves from the interpretative assumption that, in the presence of the case contemplated by number 2) of Article 147(1) of the Penal Code, even when, as in the case of the a quo judgment, a condition of serious irreversible infirmity exists, the supervisory court, in ordering the optional postponement of the execution of the sentence, must necessarily set a deadline, the expiration of which would provoke the useless, as well as cyclical, re-evaluation of the convict's situation.

For the referring Court, indeed, the appending of a deadline to the postponement of the execution of the sentence under the challenged provision would be so necessary as to exclude the possibility of a constitutionally oriented interpretation in light of which to consider allowed the identification of the final moment of the postponement in the death of the convict or in the coming to an end of the ascertained conditions of incapacity, with such an interpretation resulting in the "circumvention of the law's data.”

7.1.– The assumption just recalled cannot be shared.

According to the jurisprudence of legitimacy, for the purposes of optional postponement of the custodial sentence under Article 147(1)(2) of the Penal Code, it is necessary that the disease from which the convict is suffering is serious, that is, such as to endanger life or to cause significant damaging consequences and, in any case, to require treatment that cannot be easily implemented in the state of detention. The judge must therefore operate a balancing between the interest of the convict to be adequately treated and the security needs of the community. No importance is attributed, however, to the chronic or incurable character of the disease, given that the requirement of the reversibility of the infirmity is not provided by the cited provision, nor, on the other hand, does the postponement of execution underlie a renunciation of the implementation of the punitive power (Court of Cassation, First Penal Section, judgments March 14-25, 2025, no. 11725, Nov 13, 2020-Jan 20, 2021, no. 2337, Dec 18, 2013-Jan 10, 2014, no. 789, and Oct 14, 2011-Jan 13, 2012, no. 972).

The statement that the setting of a deadline would be indispensable, with consequent necessary verification of the persistence of the conditions justifying the postponement of the execution of the sentence upon its expiration, does not take into account, however, the orientation expressed by the jurisprudence of the Court of Cassation, according to which the appending of a final deadline to the postponement of the execution of the sentence, granted under Article 147(1)(2) of the Penal Code, is legitimate only if the duration of the deferral is motivated (Court of Cassation, First Penal Section, judgment April 30-June 26, 2001, no. 25928).

The appending of a final deadline of the postponement—the Court of Cassation observed—can be inferred for system homogeneity with respect to the hypotheses contemplated by numbers 1) and 3) of the same Article 147(1) of the Penal Code; it is, in fact, compliant with the principle of reasonableness to bind the effectiveness in time of a measure (which, by its nature, cannot be indefinite) to the verified persistence of the factual situation that constitutes its prerequisite.

However—the same Court specified—the order in which the predetermination of the expiry date of the postponement is not connected to the duration of the situation hindering the execution of the sentence and proves, rather, in contrast with the recognition of the severity and irreversibility of the clinical conditions of the applicant must be considered illegitimate, being necessary, in this latter case, a specific motivation.

In postponing the execution of the sentence, the judge can therefore account for their choice not to set any deadline for the postponement established under Article 147(1)(2) of the Penal Code, upon the expiration of which the situation must be reconsidered, precisely when the convict is, based on the clinical documentation acquired, in conditions of serious irreversible infirmity and therefore of indeterminable duration, such as those represented by the a quo judge, where the balancing between protection of the person’s health, re-educational purpose of the detention, and security needs of the community is oriented in this sense.

Regarding the latter, it must be observed that the absence of danger of the convict is one of the prerequisites for the granting of the postponement of the execution of the sentence under the cited Article 147(1)(2) of the Penal Code (Article 147(4) of the Penal Code). Moreover, should a condition of danger for the convict’s health persist, it will be possible to provide through the different institution of home detention under Article 47-ter(1-ter) of the Penitentiary Act.

It is worth underlining the necessity that the assertion of the irreversibility of the pathology, which in itself could justify the adoption of a measure of postponement of the execution of the sentence without indication of a final deadline, be reached at the outcome of rigorous clinical investigations, such as to offer, in light of scientific knowledge, a reasonable prognostic basis for the determinations of the competent judge.

The postponement of the execution of the sentence which, in consideration of the irreversibility of the conditions of serious infirmity of the convict, does not indicate the predetermined duration of the postponement period, remains, however, revocable when it is subsequently ascertained that those conditions have not ceased, due to improvement or recovery (Court of Cassation, First Penal Section, judgment Feb 16-March 29, 1995, no. 982).

8.– The questions of constitutional legitimacy of Article 147 of the Penal Code, raised with reference to Articles 3(2), 24, 27(3), 111(2), and 117(1) of the Constitution (the latter in relation to Article 6 of the ECHR), must therefore be declared unfounded.

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares the questions of constitutional legitimacy of Article 147 of the Penal Code unfounded, raised with reference to Articles 3(2), 24, 27(3), 111(2), and 117(1) of the Constitution (the latter in relation to Article 6 of the European Convention on Human Rights) by the Supervisory Court of Bologna, with the order indicated in the epigraph.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on March 23, 2026.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Reporting Judge

Roberto MILANA, Director of the Chancellery

Deposited in the Chancellery on April 30, 2026

 

The anonymized version is consistent, in the text, with the original.