ORDER NO. 95
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, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
ORDER
in the proceedings regarding the constitutional legitimacy of Article 443, paragraph 1, of the Code of Criminal Procedure, initiated by the Military Court of Appeal, Second Section, in the criminal proceedings against A. S., pursuant to the order of July 14, 2025, registered under no. 173 of the 2025 register of orders and published in the Official Gazette of the Republic no. 39, First Special Series, of the year 2025.
Having examined the act of intervention by the President of the Council of Ministers;
having heard in the chambers on May 4, 2026, the Reporting Judge Maria Rosaria San Giorgio;
having deliberated in the chambers on May 4, 2026.
Considering that, by order dated July 14, 2025 (reg. ord. no. 173 of 2025), the Military Court of Appeal, Second Section, raised, with reference to Articles 3 and 24 of the Constitution, the question of constitutional legitimacy of Article 443, paragraph 1, of the Code of Criminal Procedure, "in the part in which it excludes the right of the defendant to file an appeal against judgments of acquittal due to the particular tenuity of the act, pursuant to Article 131-bis of the Criminal Code”;
that in the proceedings a quo, an appeal is sought by the defendant against a judgment of acquittal due to the particular tenuity of the act, rendered, pursuant to Article 131-bis of the Criminal Code, at the conclusion of a summary judgment proceeding;
that, according to the referring Court, such an acquittal "presupposes the verification of the full liability of the defendant,” with "significant prejudicial consequences” for the latter, "particularly in civil proceedings for damages and, as specifically pertains to military personnel, in disciplinary proceedings,” which would render the prohibition of appeal "irrational and in conflict with the constitutional principles set forth in Articles 3 and 24 of the Constitution”;
that, by an act filed on October 14, 2025, the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, intervened in the proceedings, concluding for the inadmissibility and, on the merits, for the groundlessness of the question.
Considering that, subsequent to the referral order, on April 8, 2026, the Court of Appeal of Milan, Fourth Criminal Section, raised, with reference to Articles 3, 24, 111, and 112 of the Constitution, the question of constitutional legitimacy of Article 593, paragraph 2, of the Code of Criminal Procedure, as replaced by Article 2, paragraph 1, letter p), of Law no. 114 of August 9, 2024 (Amendments to the Criminal Code, the Code of Criminal Procedure, the Judicial System, and the Military Code), which, in the first sentence, does not allow the public prosecutor, in ordinary proceedings, to appeal against judgments of acquittal for crimes referred to in Article 550, paragraphs 1 and 2, of the Code of Criminal Procedure;
that said proceedings, registered under no. 71 of the 2026 register of orders, are still pending;
that, further subsequently, the Joint Criminal Sections of the Court of Cassation—according to the provisional information released following the hearing of April 23, 2026—raised, with reference to Articles 3, 24, 111, and 117 of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, the question of constitutional legitimacy of Article 593, paragraph 3, of the Code of Criminal Procedure in the part in which it does not provide for the right of the defendant to challenge by appeal the judgment of acquittal rendered pursuant to Article 131-bis of the Criminal Code for a crime punishable by an alternative penalty, which has sentenced the same defendant to restitution and compensation for damages in favor of the civil party;
that the questions most recently raised present aspects connected to and partially overlapping with those put forward by the Military Court of Appeal’s referral, thus rendering a joint hearing appropriate;
that, therefore, the present proceedings must be postponed to a new docket.
for these reasons
THE CONSTITUTIONAL COURT
postpones the proceedings to a new docket.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 4, 2026.
Signed:
Giovanni AMOROSO, President
Maria Rosaria SAN GIORGIO, Reporting Judge
Valeria EMMA, Chancellor
Filed in the Registry on May 29, 2026
The anonymized version conforms, in its text, to the original.