JUDGMENT NO. 68

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in the proceedings regarding the constitutional legitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and Article 4-bis, paragraph 1-quater, of Law no. 354 of 26 July 1975 (Rules on the penitentiary system and the execution of measures involving the deprivation or restriction of liberty), initiated by the Ordinary Court of Catanzaro, First Criminal Section, in the criminal proceedings against S. M., by order of 30 June 2025, registered as no. 152 in the 2025 Register of Orders and published in the Official Gazette of the Republic no. 36, first special series, of the year 2025.

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

having heard the reporting Judge Filippo Patroni Griffi in the chambers on 9 February 2026;

having deliberated in the chambers on 9 February 2026.

Statement of Facts

1.− The Ordinary Court of Catanzaro, First Criminal Section, by order of 30 June 2025, registered as no. 152 in the 2025 Register of Orders, has raised questions concerning the constitutional legitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and Article 4-bis, paragraph 1-quater, of Law no. 354 of 26 July 1975 (Rules on the penitentiary system and the execution of measures involving the deprivation or restriction of liberty), with reference to Articles 3 and 27, third paragraph, of the Constitution.

The first provision is challenged insofar as it precludes the public prosecutor from suspending the execution of the sentence for the crime under Article 609-quater of the Penal Code (sexual acts with a minor), even in cases where the special mitigating circumstance of minor gravity under the sixth paragraph of the same article has been recognized. The second provision is challenged insofar as, in regulating the conditions limiting the granting of penitentiary benefits, it does not exclude the crime of sexual acts with a minor from the scope of said crimes when the condition of minor gravity has been recognized.

1.1.− The referring court reports that the public prosecutor requested the suspension of the execution order for a sentence of one year, one month, and ten days of imprisonment imposed on an individual convicted by final judgment for the crime of sexual acts with a minor. In the case at hand, the conduct was limited to "kisses and hugs between persons linked by a spontaneous sentiment,” given that the age difference between the passive subject, who was thirteen at the time, and the perpetrator, who was twenty, was not particularly significant.

The public prosecutor's request was formulated after raising the aforementioned questions of constitutional legitimacy regarding Article 656, paragraph 9, letter a), of the Code of Criminal Procedure.

The public prosecutor observed that, pursuant to Article 4-bis, paragraph 1-quater, of the Penitentiary Law, a person convicted, inter alia, of the crime of sexual acts with a minor may access penitentiary benefits only based on the results of a scientific personality observation, conducted collegially for at least one year. In the present case, therefore, due to the reference to the aforementioned Article 4-bis, paragraph 1-quater, by Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, the convict "would have to serve almost the entire term of imprisonment without the Surveillance Court being able to assess, in concreto, the suitability and appropriateness of an alternative measure.” This, it is argued, would render the challenged legislative provision in conflict with Articles 3 and 27, third paragraph, of the Constitution.

Counsel for the defendant argued in support of the public prosecutor’s request.

1.2.− Given this premise, the Court of Catanzaro asserts that the questions are relevant, due to the impossibility of suspending the execution of the sentence, both because of the "clear literal wording” of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and the established jurisprudence on the matter.

The Court of Cassation has, in fact, excluded the possibility of interpreting Article 4-bis, paragraph 1-quater, second sentence, of the Penitentiary Law—which allows for the suspension of the execution of the sentence for the crime of sexual violence under Article 609-bis of the Penal Code in cases of minor gravity—in an extensive or analogical manner.

The jurisprudence of legitimacy has also affirmed that the public prosecutor and the execution judge must limit themselves to verifying the existence of grounds precluding the suspension of the execution order, as it is the responsibility of the Surveillance Court to evaluate whether or not the requirements prescribed by law for admission to penitentiary benefits are met.

The public prosecutor's request to suspend the execution order in the case before it could not, therefore, be granted.

1.3.− Nor can the relevance of the questions be challenged by the existence of legislative discretion in the matter. This is because the assumption is not insurmountable, not only due to the fact that this Court has already declared the constitutional illegitimacy of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure in relation to other types of crimes (judgments no. 3 of 2023 and no. 125 of 2016 are cited), but also in virtue of the fact that "the examination of constitutional legitimacy may well concern legislation on penitentiary policy, just as it may concern criminal policy and the dosage of penalties.”

1.4.− Regarding the issue of not being manifestly unfounded, the Court of Catanzaro doubts the constitutional legitimacy of the aforementioned Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, and "upstream,” of Article 4-bis, paragraph 1-quater, of the Penitentiary Law, insofar as they preclude the public prosecutor from suspending the execution of the sentence for the crime of sexual acts with a minor, even when the special mitigating circumstance of Article 609-quater, sixth paragraph, of the Penal Code has been recognized.

1.4.1.− The challenged provisions would be in conflict, first and foremost, with the principle of equality, due to the disparity in treatment compared to the case under Article 609-bis, third paragraph, of the Penal Code, which protects a similar legal interest—sexual liberty—and for which the prohibition on suspending the execution of the sentence does not apply in cases of minor gravity, according to the provisions of Article 4-bis, paragraph 1-quater, second sentence, of the Penitentiary Law.

The referring judge observes that, while it is true that the crime of sexual acts with a minor "is of particular gravity due to the age of the victim and their related condition regarding conscious self-determination,” the crime of sexual violence would be no less serious, "as it presupposes the dissent (or even the mere lack of consent) of the victim.” Given the identical legal interest protected, it cannot be excluded that, in concreto, the conduct of sexual acts with a minor, in the mitigated form, is less serious than that of sexual violence, also in the mitigated form: as would be the case here, given the consent of the victim, whose level of maturity is not significantly different from that of an adult.

1.4.2.− The disparity in treatment would also occur in relation to other types of crimes that, although protecting different legal interests, should be considered more or similarly serious compared to the crime of sexual acts with a minor, without, however, providing for a prohibition on suspending the execution order: the referring judge cites, "by way of example,” the cases under Articles 287, 375, third paragraph, 579, and 629, third paragraph, of the Penal Code.

1.4.3.− According to the Court of Catanzaro, Article 3 of the Constitution would also be violated from the perspective of reasonableness. The challenged rules, in fact, impose on the public prosecutor the obligation to proceed with the execution of the sentence, being unable to evaluate in concreto whether the convict's limited dangerousness would make access to a measure alternative to detention possible "without prior time spent in prison.”

1.4.4.− The referring judge, finally, believes the challenged rules are in conflict with the re-educational function of the sentence as per Article 27, third paragraph, of the Constitution.

While it is true that the legislature may impose a period of incarceration before accessing alternative measures to detention, due to the particular dangerousness signaled by certain crimes, and may consider such access a merely residual possibility (Judgment no. 41 of 2018 of this Court is cited), nevertheless, in the case of the crime of sexual acts with a minor for which minor gravity has been recognized, "presuming, in a rigid and automatic manner, that the convict possesses a degree of dangerousness that can only be contained by prison for a period of at least one year is a legislative option susceptible of conflict with the aforementioned re-educational purpose of the sentence.”

The concrete circumstances demonstrate the argument well, as the convict—by virtue of the sentence imposed of one year, one month, and ten days of imprisonment—could only benefit from a measure alternative to detention after one year of imprisonment: this would be "a useless sacrifice that frustrates the re-educational process,” as the offender would perceive they are undergoing penitentiary treatment "divorced from the gravity of their conduct and the danger underlying it.” The Court of Catanzaro clarifies that it is not challenging the legislative choice to punish sexual crimes committed against minors more severely, but rather the method of executing the sentence, which must be aimed at the re-education of the convict and, therefore, must be detached from the automatism of the challenged norms, which ignore "the peculiarities of individual concrete cases.”

2.− With an act filed on 23 September 2025, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, who requested that the questions of constitutional legitimacy be declared inadmissible or unfounded.

2.1.− The defense of the intervening party represents, first of all, that the questions would be inadmissible as they were raised "within the scope of an irregular procedure not provided for by any regulatory archetype.” Pursuant to Article 656 of the Code of Criminal Procedure, in fact, it is the public prosecutor who, upon the occurrence of the conditions provided by law, suspends the execution of the sentence; whereas there is no provision for them to request it from a judge, as happened in this case.

The Court of Catanzaro, therefore, could not be considered the referring court, as it had adopted the referral order "within the framework of a judicial proceeding that does not even belong in the abstract to a type known to the legal system.” A proper initiation of the questions of constitutional legitimacy would have occurred, instead, had the public prosecutor ordered the execution of the sentence, the convict had contested it before the competent judge, and the latter had introduced the judgment of constitutional legitimacy.

2.2.− On the merits, the questions would be unfounded.

2.2.1.− The referring judge, in truth, challenged the discretionary choices of the legislature in matters of criminal policy and penal law. The Constitution, in fact, "not only does not expressly require the existence of the institution of the suspension of the execution order, but above all does not require its existence in a specific procedural mode, in relation to one crime or another.”

2.2.2.− In any case, the questions would be unfounded regarding the disparity in treatment in relation to the case of sexual violence. The violation of Article 3 of the Constitution, in fact, "requires a rigorous evaluation, even structural, and in any case comprehensive, of the normative cases in question, and cannot, conversely, be reduced to an assessment of situations according to the parameter of essentially perceived disvalue”: Article 609-quater of the Penal Code, however, protects, even before sexual liberty, the moral liberty of the minor, thus distinguishing itself from Article 609-bis of the Penal Code.

2.2.3.− Similarly, the questions would be entirely unfounded regarding the disparity in treatment in relation to the other types of crimes recalled by the referring judge. The legal interests protected in each case are radically different, and it cannot be considered unreasonable that the legislature expresses "a tougher response from the legal system in relation to crimes that are particularly alarming from a social perspective (such as those that offend the moral and sexual liberty of minors),” regardless of the prescribed sentencing range.

2.2.4.− Nor would the arguments used by the Court of Catanzaro regarding the violation of the principle of the re-education of the convict be acceptable, from the perspective of the State Attorney General.

The referring judge, in fact, would have taken into consideration not a comparison between norms, as required by the judgment of constitutional legitimacy, but "the factual-procedural peculiarities of the case at hand,” so that the fact that in the present case the sentence imposed is slightly over one year could say nothing about the conformity to the Constitution of the challenged norms.

Given this, the defense of the intervening party observes that the tendency toward re-education is undoubtedly the purpose of the penal sanction, but this does not mean that every norm that limits a generally granted penitentiary benefit is in conflict with Article 27, third paragraph, of the Constitution, especially considering that the penalty has additional functions—the retributive one and that of general and special prevention—that are likewise of constitutional interest. On the other hand, if the challenged norms were truly constitutionally illegitimate because—as the referring judge claims—they rigidly and automatically presume that the convict possesses a dangerousness that can only be contained by prison for at least a year, they should be declared constitutionally illegitimate tout court and not only in relation to the crime of sexual acts with a minor.

Considered in Law

3.− The Court of Catanzaro, First Criminal Section, with the order indicated in the heading, doubts the constitutional legitimacy, with reference to Articles 3 and 27, third paragraph, of the Constitution, of Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and Article 4-bis, paragraph 1-quater, of the Penitentiary Law, insofar as they prevent the public prosecutor from ordering the suspension of the execution of the sentence for the crime of sexual acts with a minor, even when the special mitigating circumstance of minor gravity of Article 609-quater, sixth paragraph, of the Penal Code has been recognized.

The first provision, in fact, establishes that the public prosecutor, for what is relevant here, cannot order the suspension of the execution of the sentence for the crimes under Article 4-bis of the Penitentiary Law. The second provision stipulates that the benefits under the same Article 4-bis, paragraph 1, may be granted to prisoners or internees for certain crimes "only in the event of a positive evaluation, by the magistrate or the surveillance court, of the results of the scientific personality observation conducted collegially for at least one year, also with the participation of the experts referred to in the fourth paragraph of Article 80 of this Law.”

3.1.− The referring judge believes that the challenged provisions would cause, first of all, a disparity in treatment compared to the case of sexual violence, in relation to which, in the event that minor gravity is recognized, the suspension of the execution of the sentence can be ordered: this is because Article 4-bis, paragraph 1-quater, second sentence, of the Penitentiary Law provides that the prohibition on granting the benefits referred to in the first sentence does not apply when said mitigating circumstance is recognized.

A further disparity in treatment would be created in relation to other types of crimes that should be considered more or equally serious compared to the crime of sexual acts with a minor, without, however, the prohibition on suspending the execution order being provided: recalled, "by way of example,” are the cases under Articles 287 of the Penal Code (Usurpation of political power or military command); 375, third paragraph, of the Penal Code (Fraud in criminal proceedings and obstruction of justice); 579 of the Penal Code (Homicide of a consenting person); 629, third paragraph, of the Penal Code (Extortion).

Article 3 of the Constitution would also be violated from the perspective of reasonableness, as the challenged norms do not allow for an evaluation in concreto of whether the limited dangerousness of the convict would make access to a measure alternative to detention possible "without prior time spent in prison.”

Finally, the same norms would be in conflict with Article 27, third paragraph, of the Constitution, as the rigid and automatic preclusion from accessing penitentiary benefits, even in the face of the recognition of the minor gravity of the conduct of sexual acts with a minor, would frustrate the re-educational purpose of the penalty.

4.− Preliminarily, it must be observed that, subsequent to the referral order, Articles 3, paragraph 1, letter v), and 5, paragraph 1, letter a), number 1), of Law no. 181 of 2 December 2025 (Introduction of the crime of femicide and other regulatory interventions to combat violence against women and for the protection of victims), have made changes to both Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and Article 4-bis, paragraph 1-quater, of the Penitentiary Law. The ius superveniens, however, did not change the challenged norms, which continue to prohibit the public prosecutor from ordering the suspension of the execution of the sentence for the crime of sexual acts with a minor, even when the special mitigating circumstance of minor gravity under Article 609-quater, sixth paragraph, of the Penal Code has been recognized.

5.− Still preliminarily, the President of the Council of Ministers has excepted the inadmissibility of the questions as they would have been raised "within the scope of an irregular procedure not provided for by any regulatory archetype.” The suspension of the execution of the sentence, in fact, belongs to the public prosecutor, pursuant to Article 656 of the Code of Criminal Procedure, and not to a judge to whom the same would request it: since they were raised "within the framework of a judicial proceeding not even in the abstract belonging to a type known to the legal system,” the questions would therefore be inadmissible, as the Court of Catanzaro, in the present case, cannot validly be considered a referring court.

5.1.− The exception is unfounded.

It is clearly evident from the referral order that, contrary to what was excepted, the public prosecutor ordered the execution of the sentence, but then requested its suspension from the Court of Catanzaro, after promoting the present questions of constitutional legitimacy. The referring judge was, therefore, seized, as clearly emerges from the act of promotion, as the judge of execution pursuant to Article 666 of the Code of Criminal Procedure and, therefore, within the scope of a legally provided judicial procedure, so that no doubt can be entertained regarding the circumstance that in the present case the Court of Catanzaro must be considered the referring court, pursuant to Article 23 of Law no. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court). On the other hand, this Court has already examined similar questions of constitutional legitimacy on other occasions, raised by the judge of execution before whom an order of execution of a sentence already adopted was contested—now by the public prosecutor, now by the convict—(judgments no. 3 of 2023, no. 238 of 2021, no. 216 of 2019, no. 41 of 2018; orders no. 14 of 2024, no. 67 of 2020, no. 29 of 2013).

Equally without merit is the observation of the intervenor according to which the present questions would have been correctly proposed only if, once the execution of the sentence was ordered by the public prosecutor, it had been contested by the convict before the competent judge and the latter had introduced the judgment of constitutional legitimacy. Following this approach, only the convict would be legitimized to ask to raise the question of constitutional legitimacy, while the public prosecutor would be obliged to apply laws that they believe to be constitutionally illegitimate—such as those that, in the present case, forbid them from suspending the execution of the sentence—without even being able to express their doubts to the judge: which, to say the least, proceeds from a representation of the role of the public prosecutor not consistent with our legal framework, being an "organ of justice” (Judgment no. 88 of 1991) in a "peculiar institutional position” (Judgment no. 26 of 2007), called to perform their functions in compliance with the Constitution, even before the laws, in the objective interest of the legal system and, therefore, also in defense of the rights and freedoms of the individual, so much so that pursuant to Article 358 of the Code of Criminal Procedure, they are required to carry out investigations also "into facts and circumstances in favor of the person subject to investigation.”

6.− On the merits, the questions are well-founded in the terms and limits that follow.

6.1.− This Court has already noted that "[t]he suspension of execution constitutes a favorable institution for convicts against whom short custodial sentences must be executed, because it prevents their immediate entry into prison and gives them the way to request and, if conditions are met, obtain a measure alternative to detention” (Judgment no. 90 of 2017). The ratio of the institution is, therefore, to avoid the limitation of personal liberty in its most severe form—detention in prison—in cases where the convict could be granted, from the beginning, the possibility of serving the sentence in ways less invasive of that liberty and more functional to the path of re-education.

In coherence with this function of the institution, it has also been affirmed that there is a "tendential connection of the suspension of the execution order with cases of access to alternative measures” (Judgment no. 41 of 2018). In other words, there exists a "parallelism” (again Judgment no. 41 of 2018) between the possibility, in the abstract, of immediate access to alternative measures—in the sense that, by reason of the quantum of the sentence to be served, the convict can submit an application for access to such measures, with the duty remaining with the surveillance judiciary to evaluate the application in concreto—and the duty of the public prosecutor to order the suspension of the execution order, so as to allow the convict to present such application without being, in the meantime of the relative decision, deprived of personal liberty.

This mechanism, in line with the principles of equality-reasonableness under Article 3 of the Constitution and the re-education of the convict under Article 27, third paragraph, of the Constitution, avoids the breaking of the convict's ties "with their own family, social, and—above all—working context, hindering a resocialization path that could have already begun during the trial” (Judgment no. 3 of 2023). Furthermore, when the sentence to be served is short, it avoids the risk, highly probable in concreto, that the surveillance judge’s decision on access to alternative measures "intervenes after the subject has already entirely or almost entirely served their sentence” (again Judgment no. 3 of 2023).

Precisely because the connection in question constitutes "an optimal point of equilibrium” (Judgment no. 41 of 2018) and responds to constitutional principles, the legislature should act promptly, as this Court has already had the opportunity to urge, to "curtail the alarming phenomenon of the expansion of the population of the ‘suspended free’” (Judgment no. 176 of 2024). Due to the excessive workload of proceedings, in fact, surveillance courts are unable to respond in reasonable times to applications for access to alternative measures presented by persons convicted by final judgment whose sentence has been suspended, with the resulting creation, precisely, of an "enormous number of so-called ‘suspended free’” (Judgment no. 84 of 2024; on the point, also Judgment no. 201 of 2025): which works to the detriment of both the efficiency of criminal justice, which "cannot be evaluated solely in relation to the trial of cognition, neglecting the times of activation of the execution phase” (Judgment no. 176 of 2024), and the very needs of public safety, in the face of situations that could induce the surveillance judge to deny access to penitentiary benefits, and, finally, the rights of the convict, who cannot be left for long in uncertainty regarding the methods by which they will have to serve the sentence, which can evidently be more or less restrictive of personal liberty.

6.1.1.− Maintaining, in principle, the parallelism between the possibility of access to measures alternative to detention and the suspension of the execution of the sentence, this Court has also observed that said parallelism is tendential, because "it still belongs to legislative discretion to select hypotheses of severance, when opposing reasons appear prevalent” (Judgment no. 41 of 2018). The legislature may believe, therefore, that, without prejudice to the possibility of immediately making an application for access to alternative measures, the prison sentence must be the initial response to the commission of the crime established by final judgment or by reason of the particular dangerousness of which specific crimes are a sign (Judgments no. 3 of 2023, no. 238 of 2021, no. 216 of 2019, no. 41 of 2018, no. 90 of 2017, and no. 125 of 2016), or because access to alternative measures "is subject to conditions so stringent as to make this eventuality merely residual, so it appears tolerable that those who, at the end of the judgment relative to the alternative measure, will be able with extreme difficulty to escape detention are incarcerated” (Judgment no. 41 of 2018).

At the same time, constitutional jurisprudence has specified that, precisely because these are "exceptions to the ‘optimal point of equilibrium’ represented by the general rule of correspondence between the sentence limit established for access to the alternative measure and that established for the purposes of the suspension of the execution order” (Judgment no. 3 of 2023), the choices of the legislature that break the parallelism must be subjected to a "particularly strict” scrutiny (Judgment no. 41 of 2018).

6.1.2.− It must be immediately noted, moreover, that the challenged norms are not limited to providing that, by reason of the type of crime, the convict must begin to serve the sentence in prison, even though they could immediately present an application for access to measures alternative to detention, as happens—as already stated—in cases where the suspension of the execution of the sentence is impeded. On the contrary, they forbid ex lege access to alternative measures for the entire first year of detention, so that not only is there a break in the tendential parallelism mentioned, but the individualized evaluation by the surveillance judge is also impeded for a long period of time: an evaluation that is functional to ensuring the re-educational purposes of the sentence under Article 27, third paragraph, of the Constitution; so much so that, not by chance, constitutional jurisprudence has emphasized that such individualized evaluation, aimed at the granting of the benefits in question, remains possible even when the legislature has provided, not unreasonably, that, in the meantime of the decision on access to alternative measures, the execution of the sentence cannot be suspended (Judgments no. 238 of 2021 and no. 216 of 2019).

6.1.3.− What has now been observed, moreover, highlights the correctness of the referring party’s choice to challenge both Article 656, paragraph 9, letter a), of the Code of Criminal Procedure and Article 4-bis, paragraph 1-quater, of the Penitentiary Law.

Although the referring judge is now invested only with the decision on the suspension of the incarceration order, governed by Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, it is evident that a possible decision by this Court limited to upholding only the questions of constitutional legitimacy having such provision as their object would prove to be inutiliter data. The suspension of the execution order, in fact, has the precise significance of allowing the convict, in the thirty days following, to formulate an application to the surveillance court for the granting of a measure alternative to detention. If, however, the preclusion from access to any alternative measure in the absence of a year of observation in prison remained in force for convicts for an act of minor gravity under Article 609-quater of the Penal Code, the relative application would in any case be destined to be rejected by the surveillance court; so that the suspension of the execution order would resolve itself only in the useless delay of a custodial sentence destined to be served in any case.

Quite coherently, then, the referring party aims first of all—from a logical point of view—to remove the obligation of annual intramural observation at the expense of the particular category of convicts examined here, so that they too can access a measure alternative to detention from the beginning of the execution of the sentence. Such a possibility would also give meaning to the suspension of the execution order, which would allow the convict at this point to formulate an application to the surveillance court that could be effectively granted.

6.2.− In light of the recalled principles established by constitutional jurisprudence on the matter—which are, moreover, an expression of the more general orientation of this Court to exclude rigid automatisms in matters of penitentiary benefits (most recently, Judgment no. 24 of 2025)—it must be considered in conflict with Articles 3 and 27, third paragraph, of the Constitution, the legislature's choice to subtract convicts for the crime of sexual acts with a minor, even when the special mitigating circumstance of minor gravity of Article 609-quater, sixth paragraph, of the Penal Code has been recognized, from the general rule of the suspension of the execution order expressed by Article 656, paragraph 5, of the Code of Criminal Procedure, providing, furthermore, that for the first year of detention they cannot even make an application for access to measures alternative to detention.

6.2.1.− The challenged norms are, first of all, intrinsically unreasonable.

The special mitigating circumstance under Article 609-quater, sixth paragraph, of the Penal Code allows for the reduction of the sentence for sexual acts with a minor by up to two-thirds, so as to temper the effects of the concentration in a single crime of behaviors, which are very different from each other, that affect the free and harmonious development of the minor's personality in the sexual sphere, and the correlated different intensity of the disvalue in concreto of the conduct, which can compromise the protected legal interest in profoundly different ways (Judgments no. 203 and no. 202 of 2025, and no. 91 of 2024). In the face of a special mitigating circumstance of such a kind, which precisely is based on the acknowledgment of the breadth of the normative formulation of Article 609-quater of the Penal Code and on the connected suitability to include, within its scope of application, conduct that is markedly dissimilar on the criminological level and the level of disvalue, it is unreasonable to presume that the convict is always and in any case dangerous to such an extent that it is necessary to start them toward a custodial sentence in prison, but also to make it impossible for them to access alternative measures before a year, with a limiting reach on personal liberty that is particularly and unreasonably afflictive (Judgment no. 32 of 2020).

Without counting that, as demonstrated by the case in the referral proceedings, in which the sentence actually imposed is slightly over a year, the challenged norms can result in the prisoner having no possibility of accessing alternative measures for substantially the entire time of the sentence, with obvious repercussions on the re-educational process, because they could only perceive the execution methods of the sentence as disproportionate compared to a fact that was recognized to be of minor gravity.

6.2.2.− Articles 656, paragraph 9, letter a), of the Code of Criminal Procedure and 4-bis, paragraph 1-quater, of the Penitentiary Law are in conflict with Article 3 of the Constitution also by reason of the treatment they reserve for the convict for sexual acts with a minor to whom the special mitigating circumstance of minor gravity has been recognized, compared to that which they reserve for the convict for sexual violence to whom the identical special mitigating circumstance of minor gravity provided for by Article 609-bis, third paragraph, of the Penal Code has been recognized.

Article 4-bis, paragraph 1-quater, second sentence, of the Penitentiary Law, in fact, expressly excludes, in relation to the latter, the applicability of the provision of scientific personality observation for at least one year before being able to obtain penitentiary benefits. It follows that the convict for sexual violence under Article 609-bis, third paragraph, of the Penal Code, if the sentence actually imposed is equal to or less than four years, will be able to have the sentence suspended pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure.

The different treatment is devoid of justification.

Articles 609-bis and 609-quater of the Penal Code protect analogous constitutionally relevant legal interests (respectively, sexual liberty and the free and harmonious development of the minor's personality in the sexual sphere), provide for the same sentencing range (from six to twelve years of imprisonment), and are placed in a relationship of specialty, as the second finds application outside the hypotheses provided for by the first.

In such a regulatory framework, it is unreasonable that the convict for the crime of sexual violence, which presupposes, in its base form, the use of violence or threat or abuse of authority, can see the execution of the sentence suspended, pending an individualized evaluation regarding access to measures alternative to detention, when the special mitigating circumstance of minor gravity has been recognized, while the convict for the crime of sexual acts with a minor—which presupposes the absence of violence, threat, or abuse of authority, given the fact that if they recur, Article 609-bis finds application, with the increase of the sentence under Article 609-ter, first paragraph, number 5), or second paragraph, of the Penal Code—even if the case was recognized as of minor gravity, not only will not see the sentence suspended, with immediate entry into prison, but will not even be able to present an application for access to measures alternative to detention before a year.

Nor is the protection of the minor in the case submitted to this Court—which can concern, as in the case of the referral proceedings, even subjects close to the threshold of fourteen years, who have consented to the performance of sexual acts with persons who have just passed the age of majority—suitable to compensate for a significantly differentiated treatment, regarding the methods of execution of the sentence, compared to the hypothesis of sexual violence, in which the will of the victim of the crime is coerced with physical or psychological violence: so much so that, as stated, the legislature provided for the two cases, on the substantive level, an identical sentencing range and an equally identical special mitigating circumstance for cases of minor gravity.

6.2.3.− The prohibition on the suspension of the execution of the sentence provided by the challenged norms and the correlated impossibility, for the first year of detention, to apply for admission to penitentiary benefits also stand in conflict with Article 27, third paragraph, of the Constitution.

The breaking of the parallelism between the possibility of accessing, in the abstract, measures alternative to detention and the suspension, in the meantime of the individualized evaluation, of the execution of the sentence is not, as stated, constitutionally illegitimate in itself. The legislature, as this Court has already recognized (see above, point 6.1.1.), can always believe that the re-educational purpose of the sentence—which can find outside of prison, especially when sentences are short or very short, a more appropriate environment—must be balanced differently; this is all the more so when it intends to give particular protection to legal interests held by the minor.

When, however, the legislative choice is manifestly unreasonable, as it is, for what has been noted, the one placed by the challenged norms, it also determines "a completely useless sacrifice—also in the perspective of an effective protection of the community—compared to the re-educational orientation of the sentence, imposed by Article 27, third paragraph, of the Constitution” (Judgment no. 3 of 2023).

6.3.− The illegitimate prohibition on the suspension of the execution of the sentence is the result of the reference, made by Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, to the crimes under Article 4-bis of the Penitentiary Law. The reductio ad legitimitatem of the challenged discipline is possible, therefore, through the declaration of constitutional illegitimacy of only Article 4-bis, paragraph 1-quater, of the Penitentiary Law in the part in which it applies to convicts for the crime under Article 609-quater of the Penal Code to whom the special mitigating circumstance under the sixth paragraph of the same Article 609-quater of the Penal Code has been recognized.

Once this applicability is excised, in fact, the operation of the prohibition on the suspension of the execution of the sentence under Article 656, paragraph 9, letter a), of the Code of Criminal Procedure also disappears, for the hypothesis considered here, having to be applied instead the general rule under Article 656, paragraph 5, of the Code of Criminal Procedure, which provides for the suspension of the execution of the sentence in order to allow the convict to present, in a state of freedom, an application for access to measures alternative to detention.

It will be up to the surveillance court, therefore, to perform the individualized evaluation regarding the possibility, for the convict for the crime of sexual acts with a minor to whom the special mitigating circumstance of minor gravity has been recognized, to obtain them. For the purposes of the necessary favorable prognostic judgment regarding the capacity of measures alternative to detention to contribute to the resocialization of the offender and, at the same time, to ensure the rigorous prevention of the danger of commission of new crimes, there may be taken into consideration, in addition to the specific elements of the concrete case (such as the gap in age or the specific interference with the development of the sexual freedom of the minor), the behavior kept by the convict after the commission of the crime and during the criminal proceeding (Article 47, paragraph 3-bis, of the Penitentiary Law), as well as the results of the necessary personality observation conducted through the intervention of the external penal execution office (Article 47, paragraph 2, of the Penitentiary Law).

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 4-bis, paragraph 1-quater, of Law no. 354 of 26 July 1975 (Rules on the penitentiary system and the execution of measures involving the deprivation or restriction of liberty), in the part in which it applies to convicts for the crime under Article 609-quater of the Penal Code to whom the special mitigating circumstance under the sixth paragraph of the same Article 609-quater of the Penal Code has been recognized.

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

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Reporting Judge

Roberto MILANA, Director of the Chancery

Deposited in the Chancery on 5 May 2026

The anonymized version is, in its text, compliant with the original