JUDGMENT NO. 87

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

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

JUDGMENT

in the proceedings regarding the constitutionality of Articles 442(2-bis) and 676(3-bis) of the Code of Criminal Procedure, initiated by the Judge for Preliminary Investigations of the Ordinary Court of Nola, acting as the enforcement judge, in the criminal proceedings against L. C. by order dated July 15, 2025, registered as no. 172 in the register of orders for 2025 and published in the Official Gazette of the Republic no. 39, first special series, of the year 2025.

Having heard the Reporting Judge Francesco Viganò in chambers on April 13, 2026;

deliberated in chambers on April 13, 2026.

Legal Reasoning (Facts)

1.– By order dated July 15, 2025, registered as no. 172 reg. ord. 2025, the Judge for Preliminary Investigations of the Ordinary Court of Nola, acting as the enforcement judge, raised – with reference to Articles 3, 27(1) and (3), 111, and 117(1) of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights – questions regarding the constitutionality of Articles 442(2-bis) and 676(3-bis) of the Code of Criminal Procedure, "insofar as they do not provide that the Enforcement Judge may apply substitute home detention where the automatic reduction of the sentence for failure to appeal a conviction issued in summary proceedings results in the application of a sentence within the statutory limits and provided that other requirements are met.”

1.1.– Regarding the facts, the referring judge states that on May 8, 2025 – in the capacity of preliminary hearing judge and following summary proceedings – he sentenced L. C. to four years and four months of imprisonment and a fine of 18,000 euros, having found him guilty of the crime of illicit drug trafficking under Article 73(1) of Presidential Decree no. 309 of October 9, 1990 (Consolidated Act on the discipline of narcotic drugs and psychotropic substances, prevention, care, and rehabilitation of related states of addiction).

As the parties did not appeal within the statutory time limits, the judgment became irrevocable on May 26, 2025.

Subsequently, the defense counsel for the convicted person, holding a special power of attorney, requested the same judge, acting as the enforcement judge, to apply the one-sixth sentence reduction pursuant to Article 442(2-bis) of the Code of Criminal Procedure, simultaneously requesting that the resulting sentence be substituted with substitute home detention, pursuant to Article 20-bis of the Criminal Code and Article 56 of Law no. 689 of November 24, 1981 (Amendments to the criminal system).

At the chamber hearing on July 8, 2025, the referring judge applied the reduction provided for by the aforementioned Article 442(2-bis) of the Code of Criminal Procedure, recalculating the sentence to three years, seven months, and ten days of imprisonment and a fine of 15,000 euros. By a separate order, he then raised these constitutional questions, on the premise that the challenged provisions do not permit him to grant the request for sentence substitution.

1.2.– Regarding the relevance of the issue, the referring judge emphasizes that the sentence applied to the convicted person, recalculated under Articles 442(2-bis) and 676(3-bis) of the Code of Criminal Procedure, would be eligible for substitution with home detention. This is because, in the present case, there are sufficient grounds for a favorable prognosis "regarding [L. C.’s] abstention from committing further crimes and [the] adequacy of the requested substitute sentence.” The convicted person is, in fact, currently under house arrest at his parents' residence, who have renewed their willingness to host him during the execution of the substitute sentence. Furthermore, the convicted person is a "young person and recently became the father of a newborn,” had no prior criminal record at the time of the events, and for these reasons was not subjected to pre-trial detention during the proceedings. No violation of the current measure has been reported; finally, there are no impediments under Article 59 of Law no. 689 of 1981.

On the other hand, in the original conviction, the same referring judge, in his previous capacity as the preliminary hearing judge, limited himself "to attesting to the lack of (statutory) margin for recognizing substitute home detention (a fact in itself self-sufficient and overriding), expressly leaving ‘any further evaluation, in the capacity of enforcement judge, pursuant to Article 442(2-bis) C.C.P., without prejudice, following a specific hearing to be scheduled.’”

1.3.– The referring judge further excludes, with extensive reasoning, that it is possible to provide a constitutionally oriented interpretation of the challenged combined provisions to allow the enforcement judge, within the framework of proceedings under Article 676(3-bis) of the Code of Criminal Procedure, to proceed with the substitution of the sentence as recalculated under Article 442(2-bis) of the Code of Criminal Procedure.

The referring judge is aware of the arguments put forward by this Court in Judgment no. 208 of 2024: arguments developed with reference to the specific case of granting a suspended sentence in executivis, but "of clearly general scope, as they are founded on the application of the so-called ‘theory of implied powers,’ often cited in the decisions of the Supreme Court, according to which, once it is demonstrated that the procedural law assigns a certain function to a judge, that same judge must be granted all powers necessary for the exercise of that very attribution.”

However, the referring judge observes that – although there is no "consolidated living law contrary to the analogical interpretation that would be necessary to fill the gap” – the needs for legal certainty, defined by Judgment no. 208 of 2024 as "particularly acute in procedural matters,” make an additive ruling by this Court necessary. This is also due to a recent judgment of the Court of Cassation which, although referring to a different issue, stated that the institute of "meritorious acquiescence” and that of sentence substitution stand in a relationship of "unavoidable alternative,” "as it is essential for every defendant judged by summary proceedings and convicted by the court of first instance to choose between the reduction of sentence as a deflationary measure provided for by Article 442(2-bis) of the Code of Criminal Procedure and the filing of an appeal” (cited: Court of Cassation, First Criminal Section, judgment no. 8106 of December 6, 2023 - February 23, 2024).

While aware of the "non-binding, albeit highly authoritative, nature of the reasoning sustained by the Supreme Court and in the absence of decisions of an openly contrary nature,” the referring judge believes in any case that this orientation "does not render a constitutionally compliant interpretation practicable by the individual judge of merit […], which would translate into the bold praetorian construction of an institute in the absence of any foothold, both jurisprudential and, even before that, legislative.” "Furthermore,” the referring judge continues, "an application of analogia iuris in this case would stand in open conflict with the (tendential) unalterability of res judicata” (cited: Court of Cassation, United Criminal Sections, judgments no. 18821 of October 24, 2013-May 7, 2014, and no. 42858 of May 29-October 14, 2014).

The referring judge further notes that Article 95(1) of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, containing delegation to the Government for the efficiency of the criminal trial, as well as in matters of restorative justice and provisions for the swift definition of judicial proceedings) provided for transitional rules by which those sentenced to a term of imprisonment not exceeding four years as a result of proceedings pending before the Court of Cassation at the time the legislative decree entered into force may submit a request for the application of a substitute sentence before the enforcement judge. No previous legitimacy ruling, however, has so far operated an analogical application of this discipline to cases such as the one under examination.

Nor, finally, does Article 676(3-bis) of the Code of Criminal Procedure expressly allow the enforcement judge to adopt "consequential measures,” and in particular to provide for the substitution of the sentence following its recalculation.

1.4.– The legislative gap is, however, manifestly unreasonable in relation, first and foremost, to the rehabilitative function of the sentence, and consequently in conflict with Articles 3 and 27(1) and (3) of the Constitution.

After emphasizing how substitute sentences were conceived by the legislature as a tool aimed at "countering the execution in prison of short custodial sentences” (cited: explanatory report accompanying Legislative Decree no. 150 of 2022, page 385), the referring judge assumes that the impossibility of substituting the sentence following the application of the mitigating factor of Article 442(2-bis) of the Code of Criminal Procedure produces dystonic effects with respect to the goals pursued by the legislature, and therefore unreasonable and disproportionate, as well as discriminatory (cited: Judgments no. 264 of 1996, no. 487 of 1989, and no. 1130 of 1988).

As it stands, no judicial authority has the power to evaluate the existence of the requirements for the application of substitute sentences towards a subject who, as a result of the aforementioned reduction, is sentenced to a term that falls within the limits of usability of the institute. This would entail "the application of a disproportionate sentence towards the convicted person, who in the abstract is deserving of alternative sanctioning treatment.”

Nor could one object that the legislative gap is remedied by the likely suspension of the execution order by the public prosecutor for a subject who – as in this case – is under house arrest (which would therefore transform into "executory house arrest” pursuant to Article 656(10) of the Code of Criminal Procedure), or the prospect of the subsequent granting of home detention as an alternative measure by the surveillance court, as these are merely "future scenarios, the prerogative of other judicial authorities, in the face of the possibility of a concrete and immediate decision by the judge of the cognisance [recte: enforcement judge].” Furthermore, the same legislative gap would deprive the convicted person of a treatment characterized by less affliction compared to similar institutes, as, for example, substitute home detention could be accompanied by a treatment program developed by the External Criminal Execution Office (UEPE) pursuant to Article 56(2) of Law no. 689 of 1981, and such a sentence is in any case characterized by more flexible requirements than the analogous alternative measure, and therefore more functional to the social reintegration of the offender.

Finally, the impossibility of applying substitute home detention would, for sanctioning purposes, effectively neutralize the significance of acquiescence to the conviction, which likewise would require consideration in determining the sentence (cited, again, Judgment no. 208 of 2024).

1.5.– The denounced legislative gap would, in another respect, be intrinsically unreasonable in relation to the constitutional and conventional imperative of the reasonable duration of the trial, with consequent violation of Articles 111(2) and 117(1) of the Constitution, the latter in relation to Article 6 ECHR.

One of the essential objectives of the 2022 reform was, in effect, to anticipate the evaluation of possible alternatives to prison following the cognition trial, in order to avoid the waiting times associated with the subsequent decision of the surveillance court on the request for an alternative measure. The impossibility for the enforcement judge to decide immediately on the substitution of the sentence would not only fail to achieve the rehabilitative and procedural deflationary goals pursued by the legislature, but would stand "in opposition to the latter, hindering the realization of sanctioning treatments alternative to prison […] and inflating the already burdened surveillance proceeding,” or ending up by incentivizing appeals aimed solely at obtaining, on appeal, a reduction of the sanctioning treatment, so as to allow the convicted person to access the substitution of the custodial sentence.

Finally, the acceptance of the proposed questions would be "synergistic” with a recent orientation of the legitimacy jurisprudence, according to which the enforcement judge, called upon to apply the one-sixth sentence reduction provided for by Article 442(2-bis) of the Code of Criminal Procedure, should deliberate not de plano, but following a chamber hearing scheduled pursuant to Article 666 of the Code of Criminal Procedure (cited: Court of Cassation, First Criminal Section, judgment no. 7356 of February 6-21, 2025): a hearing that would assume at this point "the appearance of a sentencing hearing in the executive phase, that is, of a ‘space for adversarial debate on the sentence’ functional to allowing the parties and the Judge renewed (and more congruent) evaluations regarding the sanctioning treatment towards the convicted person.”

2.– The President of the Council of Ministers did not intervene in the proceedings.

Legal Analysis (Considerations)

3.– By the order in the heading, the GIP of the Court of Nola, acting as the enforcement judge, raised – with reference to Articles 3, 27(1) and (3), 111, and 117(1) of the Constitution, the latter in relation to Article 6 ECHR – constitutional legitimacy questions regarding Articles 442(2-bis) and 676(3-bis) of the Code of Criminal Procedure, "insofar as they do not provide that the Enforcement Judge may apply substitute home detention, where the automatic decrease of the sentence for failure to appeal a conviction issued in summary proceedings results in the application of a sentence within the statutory limits and provided that other requirements are met.”

Article 442(2-bis) of the Code of Criminal Procedure, introduced by Legislative Decree no. 150 of 2022, provides – with reference to summary proceedings – that "when neither the defendant nor his defense counsel has filed an appeal against the conviction, the sentence imposed is further reduced by one-sixth by the enforcement judge.”

Parallelly, Article 676(3-bis) of the Code of Criminal Procedure – introduced by Legislative Decree no. 31 of March 19, 2024 (Integrative and corrective provisions of Legislative Decree no. 150 of October 10, 2022, implementing Law no. 134 of September 27, 2021, containing delegation to the Government for the efficiency of the criminal trial as well as in matters of restorative justice and provisions for the swift definition of judicial proceedings) – provides that "the enforcement judge is also competent to decide on the application of the sentence reduction provided for by Article 442(2-bis). In this case, the judge proceeds ex officio before the transmission of the excerpt of the measure that has become irrevocable.”

Both provisions were affected by Judgment no. 208 of 2024 of this Court, originated by a referral order from the same judge today. Both were declared constitutionally illegitimate insofar as they did not provide "that the enforcement judge may also grant the suspension of the sentence and the non-mention of the conviction in the criminal record certificate, when the trial judge could not provide for it because the sentence determined at that time was higher than the statutory limits that allow for the granting of such benefits.”

In essence, the referring judge aims for an analogous additive ruling, which allows the enforcement judge – in the hypothesis provided for by Article 442(2-bis) of the Code of Criminal Procedure – to substitute the custodial sentence, reduced by one-sixth, with home detention pursuant to Articles 53 et seq. of Law no. 689 of 1981, where the trial judge could not provide in this sense because the sentence was higher than the limit of four years, established by Article 53 itself of Law no. 689 of 1981.

In the referring judge’s view, the challenged provisions do not currently allow for such an outcome.

The resulting legislative gap would stand in contrast to the principles of proportionality and individualization of sanctioning treatment – and therefore with Articles 3 and 27(1) and (3) of the Constitution –, as well as with the principle of the reasonable duration of the trial, recognized at both the constitutional level (Article 111(2) of the Constitution) and the conventional level (Article 6(1) ECHR, relevant in the national legal order by virtue of Article 117(1) of the Constitution).

4.– The questions are not well-founded, in the sense specified below.

The set of rules challenged by the referring judge would effectively stand in contrast to the constitutional principles invoked if one were to believe that the enforcement judge does not have the power, within the framework of the proceedings under Article 676(3-bis) of the Code of Criminal Procedure, to apply a substitute sentence when the custodial sentence, recalculated pursuant to Article 442(2-bis) of the Code of Criminal Procedure, is reduced in such a way as not to exceed the sentence limits that allow the convicted person to access the substitute sentence itself (infra, 4.1.).

However, a constitutionally compliant interpretation of this set of rules is possible and mandatory, without it being necessary in this case to declare the constitutional illegitimacy of the challenged provisions (infra, 4.2.).

4.1.– The referring judge substantially reiterates – with reference, this time, to the power to apply a substitute sentence in place of a custodial one – the challenges that led this Court, with Judgment no. 208 of 2024, to declare the two provisions now challenged constitutionally illegitimate, with reference to the failure to (expressly) recognize the power of the enforcement judge to apply a suspended sentence and non-mention of the conviction in the criminal record certificate, where the granting of such benefits is possible only as a result of the one-sixth reduction of the sentence imposed at the trial level, as a "counterpart” to the convicted person’s waiver of appealing the conviction.

4.1.1.– Indeed, just like a suspended sentence, substitute sentences are not at all expressive of "generic indulgency requests or an unmotivated ‘escape from sanction’ towards perpetrators” (Judgment no. 208 of 2024, point 3.1. of the Legal Reasoning), but are autonomous sanctions functional to ensuring the "constitutional face” of the criminal system: a system that – in accordance with the literal data of Article 27(3) of the Constitution, where one reasons of "sentences” in the plural (Judgment no. 139 of 2025, point 8.1. of the Legal Reasoning) – is today increasingly less centered on custodial sentences, as attested by the fact that the number of people in the charge of the external criminal execution service (over 100,000 at the date of this decision) is today greater than those who are serving their sentence in prison (almost 64,000).

In particular, the reform of substitute sentences carried out through Legislative Decree no. 150 of 2022 intended to revitalize these alternative options to prison sentences, until that moment scarcely applied in practice. This was done in the awareness – long clear to criminal science – of the desocializing effects of short-term custodial sentences that tend to hinder, rather than favor, the constitutional objective of the rehabilitation of the convicted person. They are in fact too short for a "truly effective rehabilitation program to be set up and implemented in favor of the convicted person”; and at the same time they are "long enough to cause serious consequences for him, for low-gravity crimes, since entering prison causes not only a sudden tearing of family, social, and work relationships until then maintained (with consequent difficulty in their restoration once the execution of the sentence has ended), but also contact with people convicted of much more serious crimes and, in general, with criminal subcultures that can lead him to mature life choices stably oriented towards the commission of new crimes” (Judgment no. 28 of 2022, point 5.1. of the Legal Reasoning).

The choice of the 2022 legislature was, therefore, to entrust the judge – in the presence of a series of further conditions, positive and negative, established by law – with the evaluation of whether substitute sentences appear in practice "more suitable for the rehabilitation of the convicted person,” as well as capable of ensuring, "even through appropriate requirements,” "the prevention of the danger of committing other crimes”; the judge having in any case to choose, among the different substitute sentences, "the one most suitable for the rehabilitation and social reintegration of the convicted person with the least sacrifice of personal liberty” (Article 58(1) and (2) of Law no. 689 of 1981).

As is evident from the clauses now mentioned, substitute sentences are today, even more than in the past, conceived by the legislature as specially calibrated with respect to the constitutional objective of "social reintegration” of the convicted person: an objective which, as observed by this Court, constitutes the final point of that path of "recovery,” "reparation,” "reconciliation,” and, indeed, "social reintegration,” in which the constitutional mandate of the rehabilitation of the convicted person is concretely articulated (Judgment no. 179 of 2017, point 4.4. of the Legal Reasoning).

Such a design does not neglect the necessary protection of society (and potential future victims) against the danger of committing new crimes, but aims to balance this objective – also of constitutional relevance (Judgment no. 22 of 2022, point 5.4. of the Legal Reasoning) – with the principle of the minimum sacrifice of personal liberty: a principle, the latter, which imposes both on the legislature, and on the trial judge and then on the judge from time to time competent for the executive phase, to contain the restrictions of the right to personal liberty, defined as "inviolable” by Article 13 of the Constitution, within the only limits in which they are effectively necessary and proportionate to the safeguarding of individual and collective interests, likewise of constitutional relevance, protected by criminal laws (Judgment no. 139 of 2025, point 9.1. of the Legal Reasoning, as well as no. 95 of 2025, point 5.2.3. of the Legal Reasoning, and further references therein).

4.1.2.– Now, just like the suspended sentence and the non-mention of the conviction, substitute sentences are also in general subordinated to maximum sentence limits, declined differently by Article 53 of Law no. 689 of 1981 in relation to each substitute sentence.

Decisive, for the purposes of respecting this limit, is the sentence determined by the judge following all the criteria of "commensuration in a broad sense,” including those deriving from the sentence reductions connected to the defendant's choice of ritual. This corresponds to a real rule of system, supported – as already observed in Judgment no. 208 of 2024 – by a solid justification: "the decrease in the sentence following individual procedural choices is not a gracious concession to the convicted person, but reflects the precise synallagmatic logic […] adopted by the legislature, which guarantees a lower sanctioning burden to those who voluntarily renounce exercising integral parts of their constitutional right to defense, thus providing a contribution to the faster and more efficient functioning of the criminal system as a whole”; a contribution that also has a precise meaning in evaluating the individual "need for sentence” of the individual convicted person. Thus, "it is entirely logical that the evaluation on the prerequisites of the suspended sentence and non-mention be operated with respect to the sentence as determined ‘downstream’ of the defendant’s procedural choices, which constitute, themselves, significant elements in the ‘commensuration in a broad sense’ of the sentence applicable to him” (point 3.2. of the Legal Reasoning).

Just as the "final” limit of two years opens the way, in general, to the application of the suspended sentence and non-mention, the "final” limit of four years of imprisonment opens up the possibility of substituting the sentence with home detention and semi-liberty; that of three years, the possibility of substitution with community service; and that of one year, the possibility of substitution with a pecuniary penalty.

4.1.3.– Where, however, the "final” determination of the measure of the sentence must be carried out, as in the case under examination here, not (as ordinarily) by the trial judge, but by the enforcement judge, and if it were precluded for him to operate the substitution of the sentence, there could only be a conflict with the constitutional principles invoked by the referring judge, for the same reasons already enumerated by this Court – with reference to the benefits of the suspended sentence and non-mention – in Judgment no. 208 of 2024.

In the first place, the convicted person would find himself in a worse condition compared to all those who benefit, before the judgment becomes irrevocable, from reductions connected to the waiver of defense rights: which constitutes an unreasonable disparity of treatment, unsustainable by the yardstick of Article 3 of the Constitution, since the waiver of appealing the judgment constitutes "a different and further sacrifice compared to the waiver of the guarantees of the hearing, which is already ‘compensated’ by the reduction by half or a third provided for by Article 442(2) of the Code of Criminal Procedure” (point 3.4.1. of the Legal Reasoning).

In the second place, the person sentenced to a custodial sentence contained within the limits that ordinarily allow for its substitution would see unreasonably precluded the possibility of accessing a non-custodial sentence which, according to the legislature’s evaluation, better responds to the rehabilitative mandate imposed by Article 27(3) of the Constitution (point 3.4.2. of the Legal Reasoning).

In the third place, such a situation would deprive the convicted person "of an essential tool to allow the judge to calibrate the sanctioning response to all the peculiarities of the crime committed and the specific characteristics of the convicted person: including the evaluation of his actual risk of recidivism and the need to favor his rehabilitation path, avoiding, as far as possible, the desocializing and criminogenic effects of short custodial sentences,” in violation of the mandate of individualization of the sentence, descending from the principle of "personality” of the sentence itself of which Article 27(1) of the Constitution (point 3.4.3. of the Legal Reasoning).

Finally, this situation would introduce an element of intrinsic irrationality into the system, as it would incentivize appeals in effect aimed at obtaining a reduction of sentence sufficient to allow access to a substitute sentence; in diametrical contrast with the deflationary purpose of criminal litigation pursued by the legislature, and the goals – underlying it – of respect for the principle of the reasonable duration of the trial, under Articles 111(2) and 117(1) of the Constitution, the latter in relation to Article 6 ECHR (point 3.4.4. of the Legal Reasoning).

4.2.– The referring judge excludes being able to reach, by way of interpretation, the result imposed by the constitutional principles just mentioned, and therefore hopes – in order to ensure certainty to the applicable law – for a declaration of constitutional illegitimacy in parte qua along the lines of that adopted in Judgment no. 208 of 2024.

The referring judge acknowledges, indeed, that on the controversial topic a living law has not yet been formed, against which an attempt at compliant interpretation would be destined to break. However, he deems such an interpretation not practicable, in light in particular of a judgment of the Court of Cassation which allegedly established a relationship of "unavoidable alternative” between the waiver of appealing by the convicted person following a summary trial in order to obtain a one-sixth reduction and the appeal aimed at obtaining the substitution of the custodial sentence (Cass., judgment no. 8106 of 2024).

Furthermore, the referring judge emphasizes how the transitional discipline established by Article 95(1) of Legislative Decree no. 150 of 2022 expressly provided for the possibility for the enforcement judge to substitute the custodial sentence imposed by the trial judge, limited – however – to judgments pending before the Court of Cassation at the moment of entry into force of that same legislative decree. The silence of the legislature with respect to the hypothesis here under consideration should, instead, be interpreted as indicative of the impossibility of attributing such a power to the enforcement judge in that hypothesis, characterized by the occurred formation of a res judicata, tendentially unalterable in the executive seat.

Finally, the referring judge complains about the absence of any regulatory foothold – like the provision that in certain provisions authorizes the enforcement judge to adopt "consequential measures” to the recalculation of the sentence – that allows him to reach the desired solution, which could be achieved, in the end, only through an additive ruling of this Court.

4.2.1.– Now, the constant jurisprudence of this Court considers the declaration of constitutional illegitimacy as a remedy of last resort, adoptable only when it is not possible for the referring judge to proceed to an interpretation of the challenged provision that allows avoiding its conflict with constitutional principles, or in any case when such an interpretation does not turn out in practice to be practicable for the referring judge himself.

In this regard, it is first of all appropriate to recall that the obligation of constitutionally compliant interpretation of the law does not authorize the judge, in a system founded on the separation of powers and the subjection of the judge to the law, to hermeneutical solutions contra legem: i.e., incompatible with the text of the interpreted provisions (most recently, Judgments no. 201 of 2025, point 5.3. of the Legal Reasoning, no. 142 of 2025, point 9.2. of the Legal Reasoning, and no. 202 of 2023, point 2 of the Legal Reasoning, and further precedents cited therein).

Where, instead, the letter of the law leads to a result contra Constitutionem, the common judge will have to give way to this Court, which – having verified the actual existence of the vulnus – will have to proceed to heal it through a declaration of constitutional illegitimacy of the challenged provision.

In the second place, the remedy of the declaration of constitutional illegitimacy may well be solicited by the referring judge in the presence of a living law that he deems to be in conflict with the Constitution (most recently, again, Judgment no. 202 of 2023, point 6 of the Legal Reasoning). In that hypothesis, this Court can only take note of such interpretation, and scrutinize the compatibility with the Constitution of the norm resulting from it, refraining from proposing its own constitutionally compliant alternative interpretation and declaring the constitutional illegitimacy of the challenged provision as interpreted by the living law, where the lamented vulnus actually exists.

Finally, this Court has sometimes proceeded to the declaration of constitutional illegitimacy of the challenged provision even in the absence of living law, and having indeed itself recognized that the provision could well have been interpreted in a constitutionally compliant manner, in the presence of the overriding need to ensure legal certainty in a certain discipline, in particular in procedural matters (Judgments no. 179 of 2024, point 7 of the Legal Reasoning, and no. 45 of 2023, point 10 of the Legal Reasoning), so as to eliminate from the outset the possibility that interpretative practices deemed incompatible with the Constitution could consolidate. This latter option is, moreover, to be considered residual, precisely in consideration of the nature of ultima ratio of the remedy of constitutional illegitimacy, as the interpretation of the law must first of all ensure – wherever this is compatible with the text of the law itself – respect for constitutional principles.

4.2.2.– The solution last mentioned was in fact adopted by this Court in Judgment no. 208 of 2024, which declared partially illegitimate the provisions that today are once again the subject of challenge, in consideration of the circumstance that some judgments of the Court of Cassation had reached, in the interim of the incidental constitutional legitimacy trial, the conclusion of denying the power of the enforcement judge to apply the suspension of the sentence recalculated pursuant to Article 442(2-bis) of the Code of Criminal Procedure. While extensively reasoning in the sense that the opposite interpretation would have been allowed by the letter of the challenged provision, and while emphasizing that the legitimacy precedents cited could not yet be considered suitable to constitute a living law in the sense contrary to such interpretation, this Court deemed prevalent the "needs for legal certainty, which are particularly acute in procedural matters,” in order to "ensure respect for the constitutional principles at stake through an additive ruling of acceptance” (point 4.2. of the Legal Reasoning).

4.2.3.– Such a need, however, does not recur with respect to the questions now under examination.

The judgment of the Court of Cassation no. 8106 of 2024 recalled by the referring judge – prior, moreover, to Judgment no. 208 of 2024 of this Court and concerning a specific question of intertemporal law arisen following the entry into force of Legislative Decree no. 150 of 2022 – enunciated a series of principles that seem in contradiction with the recognition of the power, in the head of the enforcement judge, to reduce the sentence by effect of the failure to appeal the conviction rendered following summary proceedings and to proceed simultaneously to its substitution, where the requirements are met.

However, in the period following that pronouncement, Judgment no. 208 of 2024 extensively reasoned (point 4.1.2. of the Legal Reasoning), on the basis of the principles enunciated by the same legitimacy jurisprudence, regarding the reasons for which, once the legislature grants the enforcement judge the power to affect the determinations on the sentence adopted in the cognition phase, such power cannot but include, even in the absence of an express provision by the legislature, that of adopting all the measures that follow the recalculation of the sentence, and especially the new quantum of custodial sentence, as resulting from the intervention by the enforcement judge.

This is on the basis of what the United Sections already defined in 2006 as "evident requirements of a logical order, coessential to the rationality of the system,” which "induce to believe that, once demonstrated that the procedural law demands a certain function from the judge, the same judge is granted the ownership of all powers necessary for the exercise of that same attribution” (Court of Cassation, United Criminal Sections, December 20, 2005 - February 6, 2006, no. 4687, point 6 of the Legal Reasoning). A principle, this, then confirmed by subsequent legitimacy jurisprudence, of which Judgment no. 208 of 2024 gave extensive account (point 4.1.3. of the Legal Reasoning).

In a recent pronouncement – subsequent to today’s referral order – the same Court of Cassation extensively resumed the reasoning path of Judgment no. 208 of 2024, applying it to the "question of whether, in the silence of the legislature, the enforcement judge also has the power (or duty) to revoke the accessory penalty, when only by effect of the new reduction do the requirements for the accessory penalty itself fail.” The Court of Cassation reached the conclusion in this instance that, "as stated by the Constitutional Court on the subject of suspended sentence and non-mention, the rule of system in force in our legal order is that the final measure of the sentence (and not that imposed in the cognition phase) constitutes the prerequisite regarding the evaluation of the conditions for the revocation of the accessory penalty” (Court of Cassation, First Criminal Section, judgment no. 34776 of October 3-24, 2025).

4.2.4.– The same criterion, in the opinion of this Court, leads clearly to resolving in the affirmative – even in the absence of the additive intervention hoped for by the referring judge – the question of whether the enforcement judge, once the sentence has been recalculated pursuant to Article 442(2-bis) of the Code of Criminal Procedure below the statutory limits for substitution, can evaluate whether the further requirements for the substitution itself exist, which would not have been possible in the cognition phase precisely due to the exceeding of those limits.

As already observed in Judgment no. 208 of 2024, the silence of the legislature on the point – both in Article 442(2-bis) and in Article 676(3-bis) of the Code of Criminal Procedure – does not exclude that the judge can (and indeed must, within the framework of a constitutionally oriented interpretation of the discipline in question) fill the gap through ordinary hermeneutical tools, including analogia iuris. In this case, such an outcome is not prevented, in particular, neither by the text of the law (which remains silent on the point), nor by a living law in a contrary sense, nor – again – by the exceptional nature of the provisions that allow the enforcement judge to modify the findings of the trial judge covered by res judicata, in the presence of a general principle – underlying all these provisions – according to which the power to intervene on the sentence crystallized in the conviction is necessarily accompanied by all the powers, "implicit,” that derive from the new determination based on the sanctioning system as a whole.

It is not, in short, a matter of applying by analogy in this case the single provision referred to in Article 95 of Legislative Decree no. 150 of 2022, calibrated by the legislature on a specific question of transitional law (the application of the new discipline to processes pending before the Court of Cassation at the moment of the entry into force of the new discipline): but rather, to apply, in the proceedings referred to in Article 676(3-bis) of the Code of Criminal Procedure, a general principle applicable throughout the execution trial. The aforementioned Article 95 can, if anything, be evoked to demonstrate that, according to the same express will of the legislature, the execution trial constitutes a suitable place to host those "fragments of cognition” (again, Judgment no. 208 of 2024, point 4.1.4. of the Legal Reasoning and, previously, Judgment no. 183 of 2013, point 6 of the Legal Reasoning) that prove necessary to examine and decide questions not yet resolved by the conviction, devolved to the enforcement judge for the first time as a consequence of a new fact with respect to the finding that has become irrevocable – as, in the case now under examination, the failure to appeal within the statutory time limits the conviction rendered following a summary trial.

Whenever it becomes necessary, therefore, to decide (at the request of the convicted person, or ex officio) on the recalculation of the sentence following the failure to appeal the conviction rendered following a summary trial and on the consequent substitution of the same, where the trial judge could not rule on the point because the original measure of the sentence did not allow for substitution, the enforcement judge may well proceed – according to what was already prefigured by the legislature in Article 95 of Legislative Decree no. 150 of 2022 with reference to the transitional discipline – to the scheduling of a hearing in chambers in which to provide for the burden. To that hearing, the rules of the Code of Criminal Procedure relative to substitute sentences will be applicable, as far as compatible, and in particular those dictated by Article 545-bis (on the necessity, for the enforcement judge, to proceed not de plano, but in the forms of Article 666 of the Code of Criminal Procedure, when he is called not to the mere "mathematical” reduction of the sentence, but also to discretionary evaluations that necessarily imply the establishment of an adversarial debate between the parties, Court of Cassation, First Criminal Section, judgment no. 23907 of April 1-June 26, 2025).

4.2.5.– In conclusion, being possible and in practice practicable an interpretation of the challenged provisions in a sense compliant with the constitutional principles invoked by the referring judge, the questions under examination must be declared not well-founded.

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares not well-founded, in the sense specified in the reasoning, the questions of constitutional legitimacy of Articles 442(2-bis) and 676(3-bis) of the Code of Criminal Procedure, raised, with reference to Articles 3, 27(1) and (3), 111, and 117(1) of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, by the Judge for Preliminary Investigations of the Ordinary Court of Nola, acting as the enforcement judge, with the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on April 13, 2026.

Signed:

Giovanni AMOROSO, President

Francesco VIGANÒ, Reporting Judge

Igor DI BERNARDINI, Clerk

Filed in the Clerk’s Office on May 21, 2026

 

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