ORDER NO. 81
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 issued the following
ORDER
in the proceedings regarding the constitutional legitimacy of Articles 37, 38, and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, initiated by the Court of Cassation, First Criminal Section, in the criminal proceedings against S. L. et al., by order of October 21, 2025, registered as No. 239 of the 2025 order register and published in the Official Gazette of the Republic No. 51, first special series, of the year 2025.
Having regard to the entries of appearance by S. L., N. C. and D. C., of D. C., as well as the interventions of P. D.A. and the President of the Council of Ministers;
having heard the Reporting Judge Filippo Patroni Griffi, in the chamber of May 18, 2026, set pursuant to Article 5, paragraph 1, of the Supplementary Rules for Proceedings before the Constitutional Court for the decision on the admissibility of the intervention of P. D.A.;
deliberated in the chamber of May 18, 2026.
Whereas the Court of Cassation, First Criminal Section, by order of October 21, 2025, registered as No. 239 of the 2025 order register, has raised questions of constitutional legitimacy, with reference to Article 111, second paragraph, and Article 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 1, of the ECHR, concerning Articles 37, 38, and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, insofar as they do not provide that an injured party who has filed an objection to a request for dismissal is entitled to recuse the judge for preliminary investigations in relation to the hearing set pursuant to Article 409, paragraph 2, of the Code of Criminal Procedure;
that, in the opinion of the referring judge, the failure to provide for the injured party's standing to request verification of the judge's impartiality and independence, due to their lack of status as a "party" during the preliminary investigation phase, would conflict with the principle of a fair trial, which establishes that "every trial" must be held "before an independent and impartial judge," it being understood that the principle of a fair trial also applies in favor of the injured party, as it applies to any subject entitled to bring a case before a judge, regardless of their status as a "procedural party" or the nature of the "case";
that, on January 7, 2026, P. D.A. filed an act of intervention, reporting to hold a direct, concrete, and qualified interest in the outcome of the proceedings;
that, in particular, in support of their standing, the intervenor states that, as an injured party in a criminal proceeding—distinct from the principal proceedings—concluded with a dismissal order following an objection under Article 409, paragraph 2, of the Code of Criminal Procedure held before the judge for preliminary investigations, they directly suffered the effects of the challenged legislation, which, by denying the objecting injured party the right to recuse the judge, led to a decision-making phase devoid of any preventive or subsequent remedy aimed at ensuring control over the impartiality of the adjudicating body;
that the intervenor reiterated this position in the brief filed on April 29, 2026.
Considering that P. D.A. has filed an act of intervention and is not a party to the principal proceedings;
that, with the decision of this Court dated March 12, 2026, amendments were introduced to the Supplementary Rules, which entered into force on May 8, 2026;
that, regarding procedural matters, the decision on the admissibility of the intervention must refer to the current Article 5 of the Supplementary Rules, as replaced by the Constitutional Court’s resolution of March 12, 2026, as it is immediately applicable upon its entry into force;
that, conversely, for the purpose of verifying the requirements for the admissibility of the intervention, the previous legislation applies, as the act of intervention was filed on January 7, 2026, and thus prior to the entry into force of said amendments;
that, according to the constant jurisprudence of this Court (inter alia, orders attached to judgments No. 174 and No. 139 of 2025; No. 140 and No. 39 of 2024), participation in incidental constitutional legitimacy proceedings is limited to the parties to the principal proceedings, as well as the President of the Council of Ministers and, in the case of regional law, the President of the Regional Junta (Articles 3 and 4 of the Supplementary Rules in the version prior to the amendments made by the resolution of March 12, 2026);
that, in this context, the intervention of subjects extrinsic to the principal proceedings is admissible only when they are third parties holding a qualified interest, directly and immediately related to the substantive legal relationship at issue in the proceedings (Article 4 of the Supplementary Rules in the version prior to the amendments of March 12, 2026) and not merely regulated, like any other, by the challenged provision (inter alia, orders attached to judgments No. 139 and No. 66 of 2025; No. 140, No. 39 and No. 22 of 2024);
that it is therefore insufficient, for the purpose of rendering an intervention admissible, that the subject holds interests analogous to those at issue in the principal proceedings, upon which the decision of this Court may have an impact;
that, therefore, the intervention must be declared inadmissible.
Having regard to Articles 4 and 5 of the Supplementary Rules for proceedings before the Constitutional Court.
for these reasons
THE CONSTITUTIONAL COURT
declares the intervention filed by P. D.A. inadmissible.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 18, 2026.
Signed:
Giovanni AMOROSO, President
Filippo PATRONI GRIFFI, Reporting Judge
Valeria EMMA, Clerk of the Court
Filed in the Registry on May 18, 2026
The anonymized version is consistent in its text with the original