JUDGMENT NO. 72

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, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, 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 69, fourth paragraph, of the Penal Code, initiated by the Ordinary Court of Ragusa, Criminal Section, sitting as a single judge, in the criminal proceedings against G. S., by order of 11 June 2025, registered as no. 157 in the 2025 register of orders and published in the Official Gazette of the Republic no. 37, first special series, of the year 2025.

Having regard to the act of appearance of G. S. as well as the intervention act of the President of the Council of Ministers;

having heard in the public hearing of 24 February 2026 the Reporting Judge Emanuela Navarretta;

having heard Counsel Alfonso Abate for G. S. as well as State Attorney Andrea Fedeli for the President of the Council of Ministers;

having deliberated in the chambers on 24 February 2026.

Findings of Fact

1.– By order of 11 June 2025 (reg. ord. no. 157 of 2025), the Ordinary Court of Ragusa, Criminal Section, sitting as a single judge, raised, with reference to Articles 3, 27(3), and 111 of the Constitution, questions of constitutional legitimacy regarding Article 69, fourth paragraph, of the Penal Code, insofar as it provides for the prohibition of the prevalence of the mitigating circumstance under Article 62, number 6), of the Penal Code over the aggravating circumstance of recidivism under Article 99, fourth paragraph, of the Penal Code.

2.– The referring court is presiding, via summary proceedings, over the criminal liability of G. S., charged with the crime of burglary (home theft) under Article 624-bis of the Penal Code.

2.1.– The Court of Ragusa states that the investigative findings demonstrate that the defendant, posing as a representative of the Church, entered the home of two spouses under false pretenses and stole the cash sum of 3,500.00 euros, which was stored inside a chest in the bedroom.

The court a quo, while deeming such conduct to be "properly classified as the crime under Article 624-bis” of the Penal Code, highlights that the defendant’s behavior following the commission of the offense fulfills the mitigating circumstance under Article 62, number 6), first part, of the Penal Code. In this regard, it reports that the defendant admitted her liability and, prior to the trial, "fully compensated the injured parties for the damage caused by paying the sum of 3,500.00 euros, i.e., the same amount stolen.”

The court further deems it necessary to grant the defendant the generic mitigating circumstances under Article 62-bis of the Penal Code.

At the same time, the Court of Ragusa considers the aggravating circumstance of recidivism (reiterated offense), under Article 99, fourth paragraph, of the Penal Code, to be applicable, as the defendant has multiple final convictions, including for offenses of a similar nature.

Faced with the concurrence of this aggravating circumstance with the mitigating circumstance of full reparation of damages, the court a quo raises questions of constitutional legitimacy regarding Article 69, fourth paragraph, of the Penal Code, which prohibits, in the balancing of mitigating circumstances against reiterated recidivism, the prevalence of the former and, therefore, precludes applying "only the reductions in sentence established for mitigating circumstances” (Article 69, second paragraph, of the Penal Code).

2.2.– Regarding relevance, the referring court emphasizes that the current provision of Article 69, fourth paragraph, of the Penal Code would force it—following a judgment of equivalence with the aggravating circumstance—to apply the basic statutory range for the crime of burglary under Article 624-bis of the Penal Code, which punishes such offense with imprisonment from four to seven years and a fine from 927.00 to 1,500.00 euros.

Conversely, if the recognized mitigating circumstances could be deemed prevalent over the reiterated recidivism, it would be permitted to impose a sentence with a minimum of two years and eight months of imprisonment and a fine of 618.00 euros, to be further reduced in relation to the chosen procedural rite.

2.3.– As to the non-manifest groundlessness, the Court of Ragusa believes that the challenged provision creates an unreasonable disparity in treatment between the authors of offenses for which the mitigating circumstance of special slightness of damage applies, under Article 62, number 4), of the Penal Code, and the authors of offenses for which the mitigating factor of full reparation of damage may be recognized, pursuant to Article 62, number 6), of the Penal Code.

Indeed, following judgment no. 141 of 2023 of this Court, which declared Article 69, fourth paragraph, of the Penal Code constitutionally illegitimate in part, the mitigating circumstance of special slightness of damage may be considered by the court to be prevalent over reiterated recidivism, whereas for the mitigating circumstance of full reparation of damage, the challenged prohibition continues to operate.

The same prohibition, when applied to the mitigating circumstance in question, would also violate Article 27(3) of the Constitution, conflicting with the "principle of the necessary proportionality of the sentence to the harmfulness of the act, through an abnormal emphasis on recidivism.”

Finally, in the operative part (dispositive) of the referral order, the violation of Article 111 of the Constitution is also alleged.

3.– By act filed on 15 September 2025, the defendant in the proceedings a quo entered an appearance, requesting that the raised questions be upheld, in adherence to the arguments made in the referral order, to which she adds further points.

The party emphasizes how the potential upholding of the challenges would enable a significant reduction in the sentence, as a result of the invalidation of the challenged prohibition of prevalence.

On the merits, she highlights the perfect logical-legal continuity between what was decided by the cited judgment no. 141 of 2023 and what was argued by the referral order in the present proceedings. She believes, therefore, that the different treatment reserved for those who benefit from the mitigating circumstance under Article 62, number 4), of the Penal Code—having committed an act producing patrimonial prejudice of slight extent—compared to those deserving of the mitigating circumstance under Article 62, number 6), of the Penal Code—having fully repaired the damage caused by the crime—is unjustifiable. The latter behavior, in expressing a post delictum repentance, would result even more incisive in terms of evaluating the harmfulness of the act and the dangerousness of the agent, entirely removing the harmful consequences through a fully satisfactory intervention toward the victims.

The challenged provision, by prohibiting the prevalence of said mitigating circumstance over reiterated recidivism, would therefore violate both Article 3 of the Constitution and Article 27(3) of the Constitution, preventing the sentence from being measured in proportion to the concrete gravity of the act and the personality of the offender (judgments of this Court no. 105 of 2014, no. 251 of 2012, and no. 183 of 2011 are cited).

Lastly, the party assumes that the provision under scrutiny, by compressing the court's power to evaluate independently, equitably, and with reasoning, the balancing of circumstances, would also infringe upon Article 111 of the Constitution.

4.– By act filed on 30 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 be declared inadmissible or, in any event, unfounded.

Procedurally, the intervenor objects, first, to a lack of relevance, since in the main proceedings the mitigating circumstance under Article 62, number 6), of the Penal Code would not find application, as the defendant merely returned the sum stolen to the spouses. The State defense refers, in this regard, to the orientation of the legitimacy jurisprudence according to which the mitigating circumstance is not configurable in the case of a mere return of stolen goods to the victim of the crime, since for the recognition of the mitigating circumstance of full reparation of damage, the compensation must be integral and effective; so much so that, in the case of partial or inadequate reparation, the release statement made by the injured party cannot benefit the defendant (Court of Cassation, Fifth Criminal Section, judgment 30 November 2022-22 February 2023, no. 7826, and Second Criminal Section, judgment 11 February-21 March 2022, no. 9535).

Secondly, the State Attorney General objects to the inadmissibility of the questions due to insufficient reasoning regarding non-manifest groundlessness in reference to all constitutional parameters that the referring court deems violated.

On the merits, it requests that the questions be declared unfounded, emphasizing how the challenged discipline does not entail a pure automatism, as the possibility remains for the court to eliminate the sentence aggravation resulting from the application of reiterated recidivism through a judgment of equivalence of aggravating circumstances with respect to the mitigating circumstances deemed present in the specific case. This would leave unaltered the discretionary power of the court to apply or not the increase, as confirmed by the jurisprudence of this Court (in this regard, judgment no. 192 of 2007 is cited).

At the same time, the State defense adopts the requirement that the rehabilitative purpose of the sentence be realized in compliance with the "principle of proportion” between the quality and quantity of the sanction and the offense (judgment no. 341 of 1994), also in order to avoid the punitive response being "perceived as unjust by the convicted person” (judgment no. 251 of 2012). However, it excludes a possible conflict with the cited principle, deeming the gap between the minimum statutory sentence provided for the crime of burglary and the minimum sentence that, in the absence of the contested prohibition, the court could impose by making the mitigating circumstance of full reparation of damage prevalent, not to be particularly high.

Furthermore, in support of non-groundlessness, it invokes a judgment of the Court of Cassation that considered the questions of constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, raised with reference to Articles 3, 25, and 27 of the Constitution, to be manifestly unfounded, in the part in which it provides for the prohibition of the prevalence of generic mitigating circumstances over reiterated recidivism under Article 99, fourth paragraph, of the Penal Code (Court of Cassation, Third Criminal Section, judgment 22 May-22 July 2024, no. 29723).

Finally, the State Attorney General points out that the possible extension of the declaration of constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code to a common mitigating circumstance—such as the one under examination—would, in fact, result in a hollowing out of the precept content of the challenged provision. Such a result would be in conflict with what was affirmed by this Court, where it deemed, in general, the de qua derogation to the discipline on the comparison of circumstances admissible.

Considerations of Law

5.– With the order indicated in the epigraph (reg. ord. no. 157 of 2025), the Court of Ragusa raised, with reference to Articles 3, 27(3), and 111 of the Constitution, questions of constitutional legitimacy regarding Article 69, fourth paragraph, of the Penal Code, in the part in which it provides for the prohibition of the prevalence of the mitigating circumstance under Article 62, number 6), of the Penal Code over the aggravating circumstance of reiterated recidivism under Article 99, fourth paragraph, of the Penal Code.

6.– According to the referring court, the challenged provision would violate Article 3 of the Constitution, since it would entail an unreasonable disparity in treatment between those for whom the mitigating circumstance of special slightness of damage under Article 62, number 4), of the Penal Code applies, and those for whom the mitigating factor of full reparation of damage under Article 62, number 6), of the Penal Code operates. Compared to the former, the court, following the judgment of this Court no. 141 of 2023, which declared Article 69, fourth paragraph, of the Penal Code partially illegitimate, can ascertain the prevalence of the mitigating factor over reiterated recidivism; conversely, in the balancing of the same aggravating circumstance with the mitigating circumstance of full reparation of damage, the challenged provision continues to exclude a priori an outcome of prevalence of the mitigating factor.

Such a preclusion, in the opinion of the court a quo, would also determine a conflict with Article 27(3) of the Constitution and specifically with the "principle of the necessary proportionality of the sentence to the harmfulness of the act,” entailing "an abnormal emphasis on recidivism.”

Finally, in the operative part of the referral order alone, the Court of Ragusa discerns a conflict of Article 69, fourth paragraph, of the Penal Code also with Article 111 of the Constitution.

7.– As a preliminary matter, it must be noted that, although the operative part of the referral order makes indiscriminate reference to Article 62, number 6), of the Penal Code, from the overall tenor of the reasoning of the order itself, it can be inferred that the court a quo intended to raise questions of constitutional legitimacy exclusively with regard to the first of the three mitigating cases contemplated by the cited provision, that is to say, that of full reparation of damage. To this, therefore, the scrutiny of this Court remains restricted.

8.– Having stated this, it is necessary to examine, first of all, the objections of inadmissibility raised by the President of the Council of Ministers.

8.1.– According to the State Attorney General, the challenges would be devoid of relevance in the proceedings a quo, since, as the defendant limited herself to returning the stolen goods to the victims of the crime of burglary, the mitigating circumstance under Article 62, number 6), of the Penal Code would not be configurable. In particular, the referring court did not confront the legitimacy jurisprudence, which requires, for the purpose of recognizing the mitigating circumstance in question, full and effective compensation (Cass. judgments no. 7826 of 2023 and no. 9535 of 2022 are cited).

The objection is unfounded.

8.1.1.– While it is undeniable that the mitigating circumstance provided for by Article 62, number 6), of the Penal Code finds application only if, before the criminal trial, the damage has been fully repaired, which presupposes the fulfillment of both the restitution obligation, where possible, and the compensatory one referred to all patrimonial and non-patrimonial damages, nevertheless, it is for the court to ascertain, in concrete terms, the possibility of reparation and the existence in an and in quantum of the damages caused by the crime.

In the case under examination, the referring court stated that the defendant "admitted her liability and fully compensated the injured parties for the damage caused by paying the sum of 3,500.00 euros, i.e., the same amount stolen” and specified that "the full compensation appears to have occurred between 2021 and 2022 and therefore before the defendant’s admission to the conditional summary proceedings on the occasion of the hearing of 14 March 2024.”

Therefore, in recognizing the requirement of full reparation of damage and in accounting for the fact that it took place through the fulfillment of the restitution obligation, the referring court implicitly excluded that, following such restitution, any items of damage caused by the crime remain.

Well then, since, as stated, it is for the court to ascertain in an and in quantum the damages caused by the crime, so much so that it "always retains a margin of discretion in evaluating the adequacy of the compensatory or reparative conduct” (Court of Cassation, Third Criminal Section, judgment 23 October-22 November 2018, no. 5271 and, in similar sense, Third Criminal Section, judgment 28 April-29 May 2023, no. 23303), the argument concerning the relevance of the questions must be considered not implausible.

8.1.2.– According to consistent constitutional jurisprudence, the reasoning on relevance formulated by the court a quo "is subject to a merely external control” by this Court, which stops "at the threshold of non-implausibility” both regarding the applicability of the rule in the main process, and regarding the possibility, or lack thereof, of defining "the latter independently of the solution to the raised question” (ex plurimis, judgments no. 137 of 2025 and no. 192 of 2022).

In the specific case, given the ruling on the completeness of the reparation of damage contained in the order, based on an evaluation falling within the exclusive jurisdiction of the referring Court, the argument concerning the relevance of the challenges must be considered not implausible.

8.2.– Subsequently, the State Attorney General objected to the inadmissibility of the questions also for lack of reasoning regarding non-manifest groundlessness in order to all constitutional parameters invoked.

8.2.1.– The objection hits the mark regarding Article 111 of the Constitution.

The referring court invokes this constitutional provision exclusively in the operative part of the order without supporting the challenge with any reasoning whatsoever.

There emerges, therefore, an absolute lack of reasoning regarding non-manifest groundlessness, which certainly cannot be remedied by the deductions made in the brief of the party entered in the proceedings, given the principle of self-sufficiency of the introductory act of the proceedings of constitutional legitimacy incidenter (judgments no. 108 of 2023, no. 136 of 2022 and no. 237 of 2021).

8.2.2.– The same objection of inadmissibility for lack of reasoning regarding non-manifest groundlessness must, conversely, be rejected regarding Articles 3 and 27(3) of the Constitution.

Regarding the first parameter, the referring court assumes that the persistent operativity of the prohibition of prevalence of mitigating circumstances over reiterated recidivism regarding the mitigating factor of full reparation of damage entails an unreasonable disparity in treatment compared to the exemption from the prohibition of the mitigating circumstance of slightness of damage, under Article 62, number 4), of the Penal Code, achieved after judgment no. 141 of 2023 of this Court.

The motivational weave, although synthetic, allows one to fully understand the meaning of the lamented violation of Article 3 of the Constitution (judgments no. 133 of 2024, no. 193 of 2023 and no. 23 of 2022).

Equally admissible must be considered the question raised with reference to Article 27(3) of the Constitution, being sufficient and clear, even if also succinct, the relative reasoning regarding non-manifest groundlessness.

In this regard, the court a quo compares the minimum sentence imposable based on the statutory range of the crime of burglary, subject of the main judgment, and the minimum sentence applicable where the judgment of prevalence of the mitigating circumstance under Article 62, number 6), of the Penal Code over reiterated recidivism were allowed. In light of the gap between such sanctions, it deems the principle of the necessary proportionality of the sentence to the harmfulness of the act violated. In particular, it infers an "abnormal emphasis” on reiterated recidivism, thus evoking the phrasing adopted in the judgment that initiated the series of rulings of constitutional illegitimacy concerning the challenged rule (judgment no. 251 of 2012, point 5 of the Considerations of Law).

Also this reasoning appears, therefore, suitable to fulfill the burden of arguing the non-manifest groundlessness of the question, in the terms indicated by the jurisprudence of this Court (judgment no. 276 of 2020).

9.– Passing to the merits, it is necessary to examine first the challenge regarding the violation of Article 27(3) of the Constitution.

The question is well-founded.

10.– First of all, it is useful to recall the framework of the jurisprudence of this Court which has intervened, already multiple times, declaring the partial constitutional illegitimacy of the challenged rule.

10.1.– Article 69, fourth paragraph, of the Penal Code, as replaced by Article 3 of Law no. 251 of 5 December 2005 (Amendments to the Penal Code and to Law no. 354 of 26 July 1975, regarding generic mitigating circumstances, recidivism, judgment of comparison of crime circumstances for recidivists, usury, and prescription), introduces a derogation from the normal functioning of the balancing of heterogeneous circumstances, as defined in the first three paragraphs of the same provision.

In particular, Article 69 of the Penal Code provides, in the mentioned first three paragraphs, that: "[w]hen aggravating circumstances and mitigating circumstances concur together, and the former are deemed by the court to be prevalent, the reductions in sentence established for mitigating circumstances are not taken into account, and only the increases in sentence established for aggravating circumstances take place. If mitigating circumstances are deemed prevalent over aggravating circumstances, the increases in sentence established for the latter are not taken into account, and only the reductions in sentence established for mitigating circumstances take place. If between aggravating circumstances and mitigating ones the court deems that there is equivalence, the sentence that would be imposed if none of said circumstances concurred shall be applied.”

The challenged fourth paragraph, in contemplating the application of the cited criteria also to circumstances inherent to the person of the offender, makes an exception for the aggravating circumstance of reiterated recidivism, under Article 99, fourth paragraph, of the Penal Code, with respect to which it establishes that "there is a prohibition of prevalence of mitigating circumstances,” such that a derogation from the provision under Article 69, second paragraph, of the Penal Code operates.

In the numerous decisions with which, starting from the cited judgment no. 251 of 2012, this Court has pronounced on the challenged rule, it has deemed, in general, the provision of "differentiated treatments for the recidivist, that is to say for ‘a subject who commits a crime voluntarily even after having undergone a process and a conviction for a willful crime, manifesting the insufficiency, in a dissuasive key, of the direct and concrete experience of the penal sanctioning system’ (judgment no. 249 of 2010)” (judgment no. 151 of 2025, which refers, in turn, to judgments no. 205 of 2017, no. 106 and no. 105 of 2014, no. 251 of 2012) admissible.

At the same time, however, this Court has affirmed that the possibility of providing for derogations to balancing cannot "go as far as to determine an alteration of the constitutionally imposed balances in the structuring of criminal liability” (lately, judgments no. 151 and no. 117 of 2025, no. 94 of 2023, which refer back to judgment no. 251 of 2012).

Therefore, once it is excluded that the "general non-mandatory nature of recidivism [can attenuate] the reach of the prohibition itself, [where] instead it makes it appear, already for that alone, excessive if not quite contradictory” (judgment no. 94 of 2023), this Court has deemed it necessary to judge, time by time, the constitutional integrity of the rule in its radiating operation with respect to a multiplicity of cases.

In particular, among the constitutional parameters with reference to which the declarations of partial constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code were pronounced, Article 27(3) of the Constitution stands out, also subject of today's judgment. Nor is this surprising, as the challenged rule, in the face of the heterogeneous concurrence of circumstances, prevents that balancing performed in concrete terms—which constitutes an important piece of the overall procedure of sentencing intended to guarantee compliance with the principle of proportionality, as well as the rehabilitative function of the sentence itself—from expressing itself in all its breadth.

10.2.– In systematizing the numerous judgments declaring the partial constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code, this Court has focused attention on the role that the various types of mitigating circumstances, in consideration of their content, play in guaranteeing the principles of proportionality, rehabilitative purpose, and individualization of the sentence (judgments no. 151 and no. 117 of 2025, no. 188 and no. 141 of 2023, as well as, first, judgment no. 94 of 2023).

Similar incidence has been traced back to a "triple guideline”: i) the need to maintain a convenient relationship of balance between the sentence (judgments no. 188 and no. 141 of 2023) and the disvalue of the act from the point of view of its harmful dimension (judgments no. 151 of 2025, no. 117 of 2025, no. 188, no. 141 and no. 94 of 2023, no. 143 of 2021, no. 205 of 2017, no. 106 and no. 105 of 2014, no. 251 of 2012); ii) that of maintaining the same balance with respect to the "degree of subjective blameworthiness” of the conduct (judgments no. 151 of 2025, no. 94 of 2023, no. 55 of 2021 and no. 73 of 2020); iii) that of adequately taking into account the incidence on the sentence of the cooperation of the offender post delictum, as a "tool to undermine [...] criminal phenomena” (judgment no. 56 of 2025) and to create a "detachment of the perpetrator of the crime from the criminal environment” (judgments no. 201 and no. 94 of 2023, no. 74 of 2016).

As to the indicative factors from which this Court has inferred, in the diachronic evolution of its jurisprudence, the injury of the mentioned principles, they are identifiable: i) in the incidence that particular mitigating factors, including lastly generic mitigating circumstances (judgment no. 151 of 2025), play in the determination of the sentence of specific types of crimes (judgments no. 151, no. 117 and no. 56 of 2025, no. 201 and no. 188 of 2023, no. 143 of 2021, no. 205 of 2017, no. 74 of 2016, no. 106 and no. 105 of 2014, no. 251 of 2012); ii) in the marked influence that any mitigating circumstance plays with respect to crimes that involve the fixed sentence of life imprisonment (judgment no. 94 of 2023); iii) in the peculiar function that certain common mitigating circumstances play as a guarantee of a conformity of the sentence to the principles of proportionality and individualization (judgments no. 141 of 2023, no. 55 of 2021 and no. 73 of 2020).

The intersection between the two motivational levels has seen, therefore, in some cases the value of both the capacity of the specific mitigating circumstance to reflect the functions recalled above (that is to say, proportionality with respect to the objective and subjective gravity of the crime and congruence with respect to the collaborative behavior of the offender), and the weight of the mitigating circumstance with respect to the specific crime charged. The need to value the mitigating factor and to avoid the attribution of excessive weight to reiterated recidivism has been deduced, in particular, from the gap between the minimum sentence provided for the non-circumstanced crime and that resulting from the application of the mitigating circumstance (judgments no. 151, no. 117 and no. 56 of 2025, no. 201 and no. 188 of 2023, no. 205 of 2017, no. 74 of 2016, no. 106 and no. 105 of 2014, no. 251 of 2012). The same instance has also been discerned in the face of abstract criminal cases whose latitude can embrace conduct of different disvalue (judgments no. 151 of 2025, no. 141 of 2023 and no. 143 of 2021) or which are characterized by "intrinsic variability in the manifestation in concrete of the constitutive elements” (judgment no. 117 of 2025).

From the combination of the recalled elements it has been inferred, therefore, since the "leading” judgment (judgment no. 251 of 2012), that the impossibility of fully valuing the specific mitigating factor, judging it prevalent over the aggravating circumstance under Article 99, fourth paragraph, of the Penal Code, "directs the identification of the concrete sentence toward an abnormal emphasis [on] reiterated recidivism,” to the detriment of the principles of proportionality, individualization and rehabilitative purpose of the sentence (judgment no. 117 of 2025).

In the face then of crimes that contemplate as the only sentence that of life imprisonment, this Court has highlighted that, since the prohibition under Article 69, fourth paragraph, of the Penal Code makes the sentence fixed and, therefore, prevents any adaptation, only a full valorization of mitigating circumstances guarantees the conformity of the sentence to the objective and subjective gravity of the crime, as well as to any collaborative conduct held subsequently by the offender. To this is added that the gap between the sentence of life imprisonment and that imposable where the court deems the mitigating circumstance prevalent (from twenty to twenty-four years, pursuant to Article 65 of the Penal Code) comforts the conclusion in the sense of an excessive weight attributed by the challenged rule to reiterated recidivism (judgment no. 94 of 2023).

Finally, in further events, the "determinant” character (judgment no. 73 of 2020) of some mitigating circumstances in the process of quantifying the sentence as a guarantee of the principles of proportionality and individualization has been placed in evidence.

This is what emerges, in an emblematic manner, with regard to the mitigating factor of partial mental infirmity, which, in general, performs the function of "adapting the quantum of the sanctioning treatment to the significant reduction of the subjective blameworthiness of the agent,” ensuring "that to the lesser degree of subjective blameworthiness corresponds a lower sentence with respect to that which would be applicable at parity of objective disvalue of the act, ‘in such a way as to ensure also that the sentence appears a response – besides not disproportionate – the most possible ‘individualized’, and therefore calibrated on the situation of the single convicted person, in implementation of the constitutional mandate of ‘personality’ of criminal liability under Article 27, first paragraph, of the Constitution’ (judgment no. 222 of 2018)” (judgment no. 73 of 2020).

In similar terms, in the judgment declaring the constitutional illegitimacy of the challenged rule with reference to the common mitigating circumstance of special slightness of damage (or of slightness of profit, when also the harmful or dangerous event is of special slightness), this Court—after dwelling on some crimes of particular importance in practice—affirmed that such mitigating factor determines, as a rule and in general, "a sensitive reduction of the content of disvalue of the crimes that offend only the patrimony, or that offend – alongside other legal interests – also the patrimony.” Therefore, of such "reduced disvalue the court must be able to take account in the sentencing treatment, without being bound to ignore it by reason only of the reiterated recidivism of the defendant” (judgment no. 141 of 2023).

11.– Having stated this, coming today to the examination of this Court is the prohibition of prevalence of the common mitigating circumstance of full reparation of damage over reiterated recidivism.

11.1.– This is the first hypothesis contemplated by Article 62, number 6), of the Penal Code which considers as a mitigating factor "having, before the trial, repaired the damage entirely, through the compensation of it, and, when possible, through restitutions.”

The same Article 62, number 6), of the Penal Code adds to such provision other two mitigating circumstances, distinct and alternative with respect to the previous one: "having, before the trial and outside the case provided for in the last paragraph of Article 56, strived spontaneously and effectively to eliminate or attenuate the harmful or dangerous consequences of the crime,” as well as "having participated in a restorative justice program with the victim of the crime, concluded with a reparative outcome. Should the reparative outcome entail the assumption by the defendant of behavioral commitments, the circumstance is evaluated only when the commitments have been respected.” Provision, the latter one, added by Article 1, paragraph 1, letter b), of Legislative Decree no. 150 of 10 October 2022 (Implementation of Law no. 134 of 27 September 2021, carrying delegation to the Government for the efficiency of the criminal process, as well as regarding restorative justice and provisions for the swift definition of judicial proceedings).

11.2.– The topographic placement of the mitigating factor under the first part of Article 62, number 6), of the Penal Code alongside other two mitigating circumstances that value collaborative conduct of the offender, facilitates the identification of the ratio of the case subject of today's judgment.

The mitigating circumstance in question aims to favor and encourage a cooperative behavior of the offender aimed at removing, before the criminal trial, all the prejudicial effects of the crime susceptible to reparation on the civil level. Such a rule connects, in fact, systematically, to Article 185 of the Penal Code, which establishes, in the first paragraph, that "[e]very crime obliges to restitutions, according to civil laws” and, in the second paragraph, that "[e]very crime, which has caused patrimonial or non-patrimonial damage, obliges the perpetrator and the persons who, according to civil laws, must answer for his act to compensation.”

The constitutive case of the mitigating circumstance presupposes, therefore, that—by effect of full fulfillment and antecedent to the criminal trial (on the exclusion of partial or installment fulfillments, Court of Cassation, Second Criminal Section, judgment 14 January-13 March 2026, no. 9810; Seventh Criminal Section, order 25 November 2025-9 January 2026, no. 739; Second Criminal Section, judgment 12 February-12 March 2021, no. 9877)—the extinction of both the restitution obligation, where possible, and the compensatory one, referred to all patrimonial and non-patrimonial damages, takes place (lately, Court of Cassation, Second Criminal Section, judgments 1 October-30 December 2024, no. 47606; 28 March-26 April 2024, no. 17346; Third Criminal Section, judgment 27 April-23 November 2023, no. 47018).

11.3.– As to the nature of the mitigating circumstance in examination, this Court has already in the past highlighted that Article 62, number 6), first part, of the Penal Code gives "preeminent emphasis [...] to the figure of the injured party and to the need that the prejudice suffered by this one because of the criminal behavior of the perpetrator be entirely restored.” In particular, it deemed that the mitigating factor must be recognized an "essentially objective character,” also in order to avoid an "arbitrary devaluation of the institute of compulsory insurance of civil liability […], an institute which performs in our legal system an irreplaceable rebalancing function, in implementation of the imperatives contained in Article 3 of the Constitution” (judgment no. 138 of 1998). Therefore, in line with what is provided by Article 185 of the Penal Code, it deemed that said mitigating factor is applicable "also when the compensatory intervention, in any case referable to the defendant, is carried out, before the trial,” by civilly liable subjects, different from the offender, since this favors on the part of the latter "a solicitation intervention with the insurance body” (judgment no. 138 of 1998).

The legitimacy jurisprudence subsequent to such pronouncement has seen in some cases maintaining that "the mitigating factor of the compensation of damage, to benefit from which the reparation must be full, is subjective as to the effects, pursuant to Article 70 of the Penal Code, but not also for the purposes of its content, for which it must be qualified as objective, such that in the conflict of interests between offender and victim of the crime, the prevalence of the interest of the latter to the integrity of the reparation does not leave any space for even eloquent manifestations of repentance of the offender” (Court of Cassation, Fifth Criminal Section, judgment 7 February-16 May 2024, no. 19608; in the same sense, Third Criminal Section, judgments 20 October-11 November 2022, no. 42928 and 15 July 2021-28 September 2021, no. 35632).

At the same time, there have not been lacking, especially recently, also reconstructions which, pivoting on the need that the compensatory intervention must be "referable to the defendant” (judgment no. 138 of 1998), require, besides the full reparation of damage, that it be in any case attributable to the will of the offender (Court of Cassation, Third Criminal Section, judgment 18 June-29 September 2025, no. 32174; Joint Criminal Sections, judgment 22 January-11 February 2009, no. 5941), also as "tangible proof of the occurred repentance […] and, therefore, of his lesser social dangerousness” (Court of Cassation, Third Criminal Section, judgment 18 September 2025-23 January 2026, no. 2701, as well as judgment 8 July-16 September 2005, no. 33724).

11.4.– Well then, it is necessary first of all to reiterate, in the furrow of the precedent of this Court, that the objective nature of the mitigating factor of full reparation of damage presupposes, in any case, an activity on the part of the perpetrator of the crime who, even in the case of fulfillment by the third civilly liable party, is held in any case to act with respect to this latter.

The ratio of the mitigating circumstance resides, in fact, in a collaborative conduct of the perpetrator of the crime that realizes or contributes to realize the effect of timely full reparation of damage, so as to make "ex post less grave the violation of the legal order provoked by the crime” (judgment no. 138 of 1998). The removal of the prejudicial civil effects of the crime before the criminal trial reduces, in fact, objectively, even if a posteriori, the offense caused by the crime to the protected legal interest.

Such reconstruction of the mitigating factor does not prevent, at the same time, from inferring from the type of conduct held in concrete by the offender also indices of his repentance and his lesser social dangerousness. Consequently, it is not to be excluded that, in the seat of proportional calculation of the incidence of the circumstance on the sentence (Article 65, second paragraph, of the Penal Code) and in the evaluation in concrete of the balancing of heterogeneous circumstances (Article 69 of the Penal Code), subject of today's judgment, the court can attribute relevance also to possible signs of a contrition of the perpetrator of the crime.

12.– Thus recalled the characters of the mitigating circumstance of full reparation of damage, multiple are the reasons that induce to consider the prohibition provided, with respect to it, by Article 69, fourth paragraph, of the Penal Code as injurious to the principle of proportionality and the rehabilitative purpose of the sentence.

Since the full reparation of damage determines, even if a posteriori, a reduction of the objective harmfulness of the crime, forbidding always and in abstract the judgment of prevalence with respect to reiterated recidivism entails that the court cannot adequately value the mitigating factor also in those hypotheses in which the removal of the prejudicial civil effects attenuates greatly the vulnus caused by the crime. In such a way, a disproportionate and excessive relief would be attributed to reiterated recidivism, in a system that is not oriented "to ‘authorship guilt’, or to the mere neutralization of individual dangerousness” (judgment no. 141 of 2023).

A similar consequence of the preclusive mechanism, inherent in the challenged rule, affects, moreover, also the rehabilitative purpose, called to give adequate emphasis to conduct that tends, at least in part, to recompose the rupture with the legal order inherent in the commission of a crime.

Inhibiting the court from ascertaining in concrete the prevalence of such a mitigating factor over the aggravating circumstance of reiterated recidivism is equivalent to preventing a provision that has the clear purpose of incentivizing a virtuous behavior from deploying fully its own effects (judgment no. 74 of 2016). This "discourages [... the] collaborative choice” of the offender (judgment no. 201 of 2023) and weakens in a significant manner the favor that the legislator intended to create with respect to the above-evoked conduct (in this sense, judgment no. 56 of 2025).

Such point assumes a meaning even more pregnant in the framework of a legal order – like the current one – which, in relation to crimes procedible by complaint subject to remission, has gone so far as to value reparative conduct for the purposes of the very extinction of the crime (Article 162-ter of the Penal Code, introduced by Article 1, paragraph 1, of Law no. 103 of 23 June 2017, carrying "Amendments to the Penal Code, to the Code of Criminal Procedure and to the Penitentiary Order”).

Lastly, placed that in evaluating in concrete the balancing of circumstances the court can give relief to the type of collaborative conduct held by the offender in fully repairing the damage and, therefore, to possible indices of repentance and lesser social dangerousness of the perpetrator of the crime, there descends from it a further reason that makes evident the need to overcome the prohibition of prevalence with respect to reiterated recidivism.

If it is true, in fact, that the latter is focused on the behavior of the offender held before the commission of the unlawful act, as an index of an insensitivity to penal deterrence, one cannot exclude a priori a judgment of prevalence over it of the mitigating factor which, in looking at the behavior of the offender held after the commission of the unlawful act, could in concrete highlight a repentance and a lesser social dangerousness.

13.– In definitive, the mitigating factor of the full reduction of damage shows a composite face: it is aimed at incentivizing a collaborative conduct of the offender directed to remove, before the criminal trial, every prejudicial civil effect deriving from the crime with the primary purpose of reducing the vulnus objectively caused to the protected legal interest, without at the same time excluding the possibility that indices of repentance of the perpetrator of the crime are ascertained in concrete, susceptible to be valued in the sanctioning dosimetry.

Excluding aprioristically a judgment in concrete of prevalence of such mitigating circumstance with respect to reiterated recidivism injures, therefore, under multiple angles, the principle of proportionality of the sentence and its rehabilitative purpose, which must be inspired by instances of "recovery, reparation, reconciliation and social reintegration” (judgment no. 179 of 2017, point 4.4. of the Considerations of Law).

14.– For these reasons, Article 69, fourth paragraph, of the Penal Code must be considered constitutionally illegitimate in the part in which it provides for the prohibition of the prevalence of the mitigating circumstance of full reparation of damage under Article 62, number 6), first part, of the Penal Code over the recidivism under Article 99, fourth paragraph, of the Penal Code.

15.– The question of constitutional legitimacy raised with reference to Article 3 of the Constitution, under the profile of unreasonable disparity in treatment, is absorbed.

for these reasons

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Article 69, fourth paragraph, of the Penal Code, in the part in which it provides for the prohibition of the prevalence of the mitigating circumstance of full reparation of damage under Article 62, number 6), first part, of the Penal Code over the recidivism under Article 99, fourth paragraph, of the Penal Code;

2) declares the question of constitutional legitimacy of Article 69, fourth paragraph, of the Penal Code, raised, with reference to Article 111 of the Constitution, by the Ordinary Court of Ragusa, Criminal Section, sitting as a single judge, with the order indicated in the epigraph, inadmissible.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 24 February 2026.

Signed:

Giovanni AMOROSO, President

Emanuela NAVARRETTA, Reporting Judge

Igor DI BERNARDINI, Chancellor

Filed in the Registry on 12 May 2026

 

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