JUDGMENT NO. 108
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 delivered the following
JUDGMENT
in the proceedings regarding the constitutional legitimacy of Article 322-quater of the Penal Code, initiated by the Court of Cassation, Sixth Criminal Section, in the criminal proceedings against A. P., by order of November 7, 2025, registered as no. 245 of the 2025 register of orders and published in the Official Gazette of the Republic no. 52, first special series, of the year 2025.
Having heard the Reporting Judge Francesco Viganò in chambers on May 4, 2026;
deliberated in chambers on May 4, 2026.
Findings of Fact
1.– By order dated November 7, 2025 (reg. ord. no. 245 of 2025), the Court of Cassation, Sixth Criminal Section, raised questions concerning the constitutional legitimacy of Article 322-quater of the Penal Code, with reference to Articles 3 and 27 of the Constitution, as well as Articles 11 and 117 (recte: 117, first paragraph) of the Constitution, the latter in relation to Article 49 of the Charter of Fundamental Rights of the European Union.
1.1.– The referring section is seized of an appeal filed by A. P., an officer of the Guardia di Finanza, convicted in the first and second instance for the crime of corruption for the exercise of public functions (Article 318 of the Penal Code) for having received 5,000 euros in connection with a tax audit conducted on a company. In both instances, the defendant was ordered to pay the confiscation of the proceeds of the crime, pursuant to Article 322-ter of the Penal Code, in the amount of 5,000 euros, as well as the pecuniary reparation provided for by the contested Article 322-quater of the Penal Code in favor of the Guardia di Finanza, for a further amount of 5,000 euros.
The judge a quo premises that the grounds for appeal articulated by the defendant—regarding the insufficiency of the evidentiary framework to prove the commission of the crime, the lack of subjective elements, and the failure to recognize the mitigating circumstance under Article 323-bis of the Penal Code—are unfounded, as they tend to re-propose issues of merit. The further ground for appeal, concerning the application of the pecuniary reparation under Article 322-quater of the Penal Code, is instead alleged to raise doubts of constitutional legitimacy regarding that provision.
1.2.– In this regard, the referring section observes that Article 322-quater of the Penal Code—in the version originally introduced by Law no. 69 of May 27, 2015 (Provisions regarding crimes against the public administration, mafia-type associations, and false accounting) and applicable ratione temporis to the facts at issue—provides that, upon conviction for the crimes set forth in Articles 314, 317, 318, 319, 319-ter, 319-quater, 320, and 322-bis of the Penal Code, the payment of a sum equal to the amount of "what was unduly received by the public official or the person charged with a public service" must always be ordered as pecuniary reparation in favor of the administration to which the individual belongs, or in the case of Article 319-ter, in favor of the administration of justice. The new text of the provision resulting from the amendment by Law no. 3 of January 9, 2019 (Measures for the fight against crimes against the public administration, as well as regarding the statute of limitations for crimes and the transparency of political parties and movements) subsequently extended the application of the pecuniary reparation to the private corruptor and parameterized it—with an amendment which, according to the judge a quo, would not alter the quantum of the reparation with reference to the position of the corrupt public agent—to "a sum equivalent to the price or profit of the crime."
1.3.– In the opinion of the referring court, Article 322-quater of the Penal Code has "a scope substantially overlapping with the operational ambit of the confiscation, whether direct or by equivalent, of the price or profit of the crime," provided for by Article 322-ter of the Penal Code, since the two measures must be applied, each mandatorily, to the same range of subjects and in relation to identical criminal offenses.
The simultaneous application of the two measures would result in the individual being subjected to "a duplication of obligations which, although having a different nature, lead to the ultimate effect of depriving the offender of double the value unduly obtained from the crime."
1.4.– Regarding, in particular, the nature of the pecuniary reparation, the judge a quo observes that Article 322-quater of the Penal Code expressly leaves "unprejudiced the right to compensation for damages," thus admitting the accumulation of the measure in question not only with confiscation but also with the compensatory obligation, which would lead to excluding the merely compensatory nature of the reparation.
Moreover, the latter would structurally differ from the compensation for damages, disregarding the claim of the injured party and even their appearance as a civil party. It is, in fact, ordered ex officio by the court and is parameterized to the price or profit of the crime, thus appearing "tendentially divorced from the determination of compensable damage." Upon closer inspection, only in the case of embezzlement would there be a substantial coincidence between profit and damage, whereas in other types of crimes to which the reparation is applicable, the profit and the price would "completely disregard the damage caused to the administration of belonging, which, upon closer inspection, might not even complain of any prejudice other than that to its image." This would occur notably in relation to the crime of corruption for the exercise of functions, where any act contrary to official duties would be absent, so that the damage suffered by the administration would be "necessarily limited if not completely absent and, in any case, not proportionally linked to the price received by the unfaithful official."
Although a recent decision of the Court of Cassation excluded the applicability of the pecuniary reparation in cases where the damage has been fully compensated prior to the sentencing (see Sixth Criminal Section, judgment no. 27422 of May 21-July 25, 2025), in principle, the parameterization to the price or profit of the crime would "necessarily determine a rift between the pecuniary reparation and the compensation for damage."
"[I]n an attempt to attribute a coherent systematic placement to the institution," jurisprudence has qualified the pecuniary reparation under Article 322-quater of the Penal Code as "an ancillary civil sanction that necessarily follows the conviction for the crimes indicated by the aforementioned provision and which is added to the penalty imposed on each convicted subject" (see Court of Cassation, Sixth Criminal Section, judgments no. 27422 of 2025; no. 8959 of January 25-March 1, 2023; no. 16098 of February 5-May 27, 2020). It has thus been affirmed that the provision in question outlines "a form of compulsory reparation, of a non-compensatory nature, not entrusted to the voluntary initiative of the offender nor subordinated to an express request by the injured party" (see Court of Cassation, Sixth Criminal Section, judgment no. 12541 of March 14-20, 2019), the quantification of which "is not left to the court's appreciation, nor is it commensurate with the overall prejudices suffered by the administration of belonging, but is flat-rate calibrated on the material proceeds unduly received."
Such an "ancillary civil sanction," aimed at "realizing a strengthening of the sanctioning arsenal placed in defense of the proper functioning of public administration" and necessarily imposed in case of conviction for one of the crimes listed in Article 322-quater of the Penal Code, would be characterized by "an undoubted punitive connotation," so much so that its application in the absence of legal prerequisites has been traced by the same legitimacy jurisprudence "within the fold of the 'illegal penalty'" (see judgment no. 12541 of 2019). It would be, ultimately, a "pecuniary sanction, which is added mandatory to the imprisonment for each subject convicted of one of the crimes listed in the norm under examination, operating concurrently and independently of the custodial sentence."
Legal doctrine is also substantially unanimous in attributing a sanctioning nature to the pecuniary reparation, conversely excluding its reparatory function, since those "elements of rethinking or repentance involving a choice by the author of the illicit to realize conducts aimed at the elision of the offense brought with the commission of the crime" would be extraneous to the relevant normative prediction. Doctrine has instead emphasized the "clear punitive function" and the "purely afflictive character" of the pecuniary reparation. By inserting Article 322-quater into the fabric of the Penal Code, the legislature would have effectively intended to "surreptitiously re-propose the pecuniary sanction for crimes for which it had been eliminated by the reform brought with Law no. 86 of April 26, 1990."
Moreover, the governmental report to Law no. 69 of 2015 would have justified the introduction of Article 322-quater of the Penal Code precisely with the need to implement the recommendations of the Organization for Economic Cooperation and Development (OECD), including that of introducing, for the purpose of deterring corruption in international economic transactions, "pecuniary sanctions" against natural persons.
The pecuniary reparation provided for by Article 322-quater of the Penal Code would then differ from that contemplated, in relation to the crime of defamation through the press, by Article 12 of Law no. 47 of February 8, 1948 (Provisions on the press), which would also configure according to jurisprudence "an exceptional hypothesis of private pecuniary penalty provided by law" (see Court of Cassation, Third Civil Section, judgment no. 29640 of December 12, 2017). This latter measure, in fact, presupposes a request by a party and would insert itself into a milder sanctioning system, in which it would perform a function of strengthening the modest afflictiveness of the criminal penalty.
On the contrary, the reparation under Article 322-quater of the Penal Code would disregard the request of the injured party and would involve the payment of a sum "predetermined in the quantum and not susceptible to gradation by the court," which would be added to "a set of particularly afflictive criminal sanctions."
In another respect, the pecuniary reparation in question would also compete with the compensation for financial damage, in particular the damage to the image deriving from the commission of a crime against public administration, which, unless proven otherwise, should be determined, pursuant to Article 1, paragraph 1-sexies, of Law no. 20 of January 14, 1994 (Provisions regarding jurisdiction and control of the Court of Audit), in an amount equal to double the sum or the patrimonial value of another illicit utility perceived by the employee. Pecuniary reparation and financial damage would both pursue "essentially sanctioning" goals and would constitute independent institutions with respect to the compensation for damages from the crime.
Ultimately, the pecuniary reparation would assume the value of "a symbolic retaliation for the evil that the crime, through the public administration to which the subject belongs, has brought upon the entire community," thus becoming "substantially a penalty."
1.5.– Facing the unequivocal sanctioning nature of the pecuniary reparation under Article 322-quater of the Penal Code, doctrine and jurisprudence would consider its cumulative application with respect to confiscation contrary to the "principle of reasonableness and proportionality of the penalty, detectable also under Article 49 of the European Charter of Fundamental Rights."
Thus, in jurisprudence, the illegitimacy has been affirmed, for "violation of the principle of ne bis in idem sanctioning," of the joint application of pecuniary reparation and confiscation by equivalent of the profit of the crime referred to in Article 322-ter of the Penal Code, as they are measures having the same object and characterized by a similar afflictive purpose (see Court of Cassation, Sixth Criminal Section, judgment no. 23203 of March 5-June 10, 2024). Similarly, it was considered illegitimate, in the seat of application of the penalty upon request of the parties, the accumulation between this type of confiscation and the full restitution of the profit of the crime, provided for by Article 444, paragraph 1-ter, of the Code of Criminal Procedure (see Court of Cassation, Sixth Criminal Section, judgment no. 16872 of January 30-April 17, 2019).
However, such interpretive solutions, although inspired by the shareable goal of avoiding "the sanctioning burden deriving from the accumulation of confiscation with pecuniary reparation," would involve a "generalized disapplication of Article 322-quater" of the Penal Code, resulting in an interpretatio abrogans of the censured provision, in contrast, moreover, with its literal tenor and that of Article 322-ter of the Penal Code, which each impose the application of the measure provided therein. Given, in fact, the identity of the application prerequisites of Articles 322-ter and 322-quater of the Penal Code, cases would not be detectable in which the pecuniary reparation could find application without overlapping with confiscation.
In light, then, of the constitutional jurisprudence that identifies in the literal tenor of the norm a limit to constitutionally oriented interpretation (see judgments no. 26 of 2010, no. 219 of 2008, and no. 109 of 1989), forbidding hermeneutical operations that result in the substantial disapplication of the norm accused of constitutional illegitimacy (see judgment no. 110 of 2012), the promotion of the incident of constitutional legitimacy would become necessary, in order to guarantee "certain and uniform protection within the legal order," which appears all the more essential "in a matter, like the criminal one, dominated by the principle of strict legality" (see judgments no. 98 of 2021, no. 115 of 2018, no. 109 of 2017, and order no. 24 of 2017).
1.6.– The referring section acknowledges that the pecuniary reparation under Article 322-quater of the Penal Code could, indeed, not overlap with confiscation, where the defendant, prior to the finality of the conviction, has provided for the full restitution of the price or profit of the crime, since in that hypothesis the ablative measure would not find application (see Court of Cassation, Sixth Criminal Section, judgment no. 21353 of June 24-July 17, 2020; Second Criminal Section, judgments no. 44189 of October 18-November 21, 2022, and no. 36444 of May 26-September 9, 2015; Third Criminal Section, judgment no. 20887 of April 15-May 20, 2015).
This would not eliminate, however, the problem of the concurrent application of the confiscation under Article 322-ter of the Penal Code and the pecuniary reparation under Article 322-quater of the Penal Code, which would arise "whenever the authors of the crime have not provided for any reparatory conduct prior to the definition of the proceeding" and, therefore, the application of confiscation cannot be excluded.
Even in the face of the occurred restitution of the proceeds of the crime and the consequent inapplicability of confiscation, a problem of "duplication of the sanctioning effect" would still arise, given that the pecuniary reparation under Article 322-quater of the Penal Code should also find application with reference to "an advantage of which the author of the crime has already been deprived."
1.7.– The sanctioning accumulation thus realized would be, in the opinion of the referring section, incompatible with the evoked constitutional parameters.
In this regard, the judge a quo again recalls the considerations made by the Court of Cassation in judgment no. 23203 of 2024, according to which the pecuniary reparation under Article 322-quater of the Penal Code constitutes a civil sanction with a punitive and deterrent function. As such, it could not coexist with the confiscation by equivalent referred to in Article 322-ter of the Penal Code, if not at the cost of realizing "a disproportionate, and therefore not permitted, duplication of sanctions." The referent specifies that, subsequently to judgment no. 23203 of 2024, the United Sections of the Court of Cassation have stated that confiscation by equivalent can be considered of a punitive nature only if it deprives the recipient of goods of value exceeding the economic advantage that the same has drawn from the illicit, and must instead, in the contrary case, be considered a restorative and afflictive measure, but not punitive (see judgment no. 13783 of September 26, 2024-April 8, 2025).
In the opinion of the referring section, the "change of paradigm" following the cited judgment no. 13783 of 2025 would not eliminate "the problem of sanctioning duplication that is determined in cases where one applies, in addition to confiscation, also the pecuniary reparation," since "[e]ven if by virtue of different legal instruments and having a nature not entirely overlapping, the ultimate result that the author of the crime suffers is the doubling of the restitutionary obligation."
While the need to deprive the author of the crime of the illicitly obtained proceeds is not incontrovertible, the further imposition of a pecuniary sanction, parameterized on the same value, would be detrimental to the principle of proportionality, "to the extent that the crime is already assisted by a set of sanctions that is adequately afflictive." In other words, the provision for pecuniary reparation on the one hand would affect the individual's assets, depriving them of a value equal to that already subtracted by effect of the confiscation, on the other hand it would add "a punitive sanction to a treatment already considered adequate."
Such "substantial doubling of patrimonial deprivation towards the person responsible for certain crimes" would conflict with the principle of proportionality descending from Articles 3 and 27 of the Constitution, which requires that "the penalty be proportionate to the disvalue of the illicit act committed, so that the sanctioning system fulfills, at the same time, the function of social defense and that of protection of individual positions," so as not to compromise its re-educational function (extensively cited, of this Court, judgment no. 236 of 2016, and also recalled are judgments no. 113 and no. 7 of 2025, no. 222 and no. 149 of 2018, no. 179 of 2017).
1.8.– The constitutional principle of proportionality of the penalty, even if originally affirmed in relation to custodial sentences, would on the other hand be extendable also to the pecuniary reparation referred to in Article 322-quater of the Penal Code.
In one respect, in fact, pecuniary reparation, being a prerequisite for the granting of the conditional suspension of the penalty, pursuant to Article 165, fourth paragraph, of the Penal Code, would produce effects "directly on the custodial penalty," without, however, offering any guarantee of proportion between the economic burden deriving from the reparation and the "effective patrimonial capacities" of the defendant.
In another respect, constitutional jurisprudence itself would have extended the principle of proportionality of the penalty also to other types of sanctions, including administrative ones, based on Article 3 of the Constitution "in combination with the constitutional norms that protect the rights from time to time affected by the sanction" (see judgment no. 112 of 2019).
Also Article 49 of the Charter of Fundamental Rights of the European Union (CDFUE), while making reference to the proportionality of penalties with respect to the crime, would have been interpreted in the sense of including within its scope of application also administrative sanctions of a punitive nature and other sanctioning figures such as punitive damages (extensively recalled, again, judgment no. 112 of 2019; also cited, in the matter of proportionality of confiscation, are judgments no. 113 and no. 7 of 2025 of this Court).
1.9.– In the hypothesis now under examination, the violation of the principle of proportionality would be appreciated not in relation to a tertium comparationis, but rather "under the intrinsic profile," since the sanctioning treatment resulting from the application of Article 322-quater of the Penal Code would appear "manifestly excessive, to the extent that it contemplates a duplication of 'afflictive' measures which, even if differently qualified (in terms of confiscation and pecuniary reparation), go to attack twice the same patrimonial aspect consequent to the commission of the crime."
A further profile of disproportion would reside in the "substantially fixed and predetermined nature" of the pecuniary reparation, which would be commensurate with the price or profit of the crime and would not be gradable by the court, not even taking into account any already occurred compensation for damage, in total or partial measure, or the occurred restitution of the advantage illicitly obtained by effect of the commission of the crime.
While not constituting a fixed sanction in a proper sense, the pecuniary reparation under Article 322-quater of the Penal Code would therefore conflict with the principle of proportionality, since the "predetermination of the commisurative criterion," anchored to the price or profit of the crime, would prevent the court from adjusting the pecuniary sanction to the economic conditions of the offender (see judgment no. 28 of 2022 of this Court).
1.10.– The referring section stresses that it is not its intention to request an interference in the discretion of the legislature, but rather to solicit the review of this Court on the "rationality and proportionality of a normative intervention which, through the surreptitious introduction of a sanction of a 'civilistic' nature with an undeniable punitive scope, goes to duplicate the content of the recovery instrument of confiscation, at the same time significantly aggravating the overall sanctioning treatment provided for the main crimes against public administration."
The ratio of such an intervention would be intrinsically contradictory, the legislature having on one hand recognized the sufficient afflictiveness of the sanctioning treatment of crimes against public administration, such as not to make necessary the reintroduction of the pecuniary penalty, on the other hand provided "a punitive instrument substantially analogous, formally leading it back to the reparatory instruments of the crime."
The discretion of the legislature would therefore have been exercised through "clearly unjustified" choices implying "dystonic results with respect to the system and the proportionality of the sanctioning response." This would justify the review of this Court on such choices (recalled are judgments no. 148 and no. 23 of 2016, no. 81 of 2014, and no. 394 of 2006).
1.11.– On the other hand, in the criminal order, "an unequivocal guiding line would be detectable, aimed [...] at pursuing with confiscation the need to subtract from the author of the crime the proceeds obtained from it but, at the same time, to avoid that there can be forms of duplication of patrimonial ablation," through the recognition of the alternativity of confiscation with respect to "reparatory and/or restitutionary conducts" of the defendant.
Expressive of this trend would be Article 19, paragraph 1, of Legislative Decree no. 231 of June 8, 2001 (Discipline of administrative liability of legal persons, companies, and associations even without legal personality, pursuant to Article 11 of Law no. 300 of September 29, 2000), which imposes, towards the entity, the confiscation of the price or profit of the crime "except for the part that can be returned to the injured party." In this case, even though confiscation is expressly qualified as a sanction, a mechanism of alternativity with respect to reparatory conducts would be provided, in order to avoid "profiles of duplication" (recalled are Court of Cassation, Second Criminal Section, judgments no. 29512 of June 16-July 10, 2015, and no. 45054 of November 16-December 5, 2011).
Also Article 600-septies of the Penal Code provides, in relation to crimes against individual personality, the mandatory confiscation of goods that constitute the product, the profit, or the price of the crime, "saving the rights of the injured person to restitutions and compensation for damages."
Still, Article 452-undecies of the Penal Code, in the matter of crimes against the environment, provides, in the fourth paragraph, for the non-applicability of the confiscation provided therein where the defendant "has effectively provided for the safety and, where necessary, for the activities of remediation and restoration of the state of the places" and, therefore, has put in place reparatory conducts of the offense caused.
Finally, Article 423-quater of the Penal Code, in disciplining the confiscation of the product or profit of the crime of forest fire, excludes the application of such a measure in case of restoration of the state of the places.
Beyond these expressly regulated hypotheses, a consolidated jurisprudence of legitimacy would have reached the conclusion of the alternativity between confiscation and reparation.
For example, in relation to the hypotheses of fraud for which Article 640-quater of the Penal Code contemplates the confiscation of the profit of the crime, such a measure would have been considered inapplicable in the face of the full restitution of what was unduly perceived (cited are Cass, no. 44189 of 2022 and no. 36444 of 2015; Third Criminal Section, judgment no. 44446 of October 15-November 4, 2013).
Also in reference to crimes against public administration, jurisprudence would have considered precluded the confiscation of the profit of the crime where the reparatory conducts put in place voluntarily by the offender have erased the economic advantage achieved (Cass., no. 21353 of 2020) and affirmed the need for remodulation of the confiscable quantum, in function of the amount of the sums returned (Court of Cassation, Sixth Criminal Section, judgment no. 34290 of May 17-August 3, 2023).
Similarly, in the matter of tax crimes, according to concordant jurisprudence of legitimacy, confiscation by equivalent could not reach sums exceeding the effective profit achieved, quantified by deducting from the value of the subtracted assets the sums recovered by the tax authority (Court of Cassation, Third Criminal Section, judgments no. 4097 of January 19-February 1, 2016, and no. 20887 of 2015).
1.12.– Ultimately, various normative provisions and living law would converge in excluding the constitutional legitimacy of "any duplication" between confiscation and "conducts falling within the broad genre of reparation of the effects deriving from the crime," by virtue of the principle whereby "the author of the crime cannot draw advantage from the illicit, but cannot even suffer an undue impoverishment by effect of the duplication of the levy executed on his assets."
The alternativity between confiscation and reparation of the consequences of the crime (declined in terms of restitution, compensation for damage, or restoration) would guarantee the special-preventive purpose of the penalty, implementing the principle whereby "crime does not pay," and at the same time avoiding "duplications between measures that, while having a different function, are all based on the ablation of the proceeds of the crime and on the protection of the damaged subject."
Such a regime of alternativity should also govern the relations between confiscation under Article 322-ter of the Penal Code and pecuniary reparation under Article 322-quater of the Penal Code, given that the latter would translate into a "duplication of the patrimonial ablation that is already guaranteed" by the former.
Pecuniary reparation would reveal itself to be a disproportionate measure also because it is parameterized to the criterion of the price or profit of the crime, and therefore unsusceptible to a gradation by the court, in function of "rebalancing the punitive effect." And indeed, the person convicted of the crimes contemplated in Article 322-quater of the Penal Code would not only suffer "the double ablation of the same patrimonial value," but would not even be able to avail himself "of the guarantees and jurisdictional protections ordinarily connected to the imposition of the pecuniary sanction."
Pecuniary reparation would configure, in conclusion, "an institution divorced from the system," resulting in "a sanction totally subtracted from the ordinary criteria" of commisuration of the penalty provided for by Article 133 of the Penal Code.
1.13.– The only remedy suitable for eliminating the denounced vulnera, realizing a "rebalancing of the system," would consist in the full declaration of constitutional illegitimacy of Article 322-quater of the Penal Code.
2.– The President of the Council of Ministers did not intervene in the judgment.
Considered in Law
3.– With the order indicated in the epigraph (reg. ord. no. 245 of 2025), the Court of Cassation, Sixth Criminal Section, raised questions of constitutional legitimacy of Article 322-quater of the Penal Code with reference to Articles 3 and 27 of the Constitution, as well as Articles 11 and 117, first paragraph, of the Constitution, the latter in relation to Article 49 of the CDFUE.
In the version applicable in the proceeding a quo, Article 322-quater – introduced by Law no. 69 of 2015 – textually provides: "[u]pon conviction for the crimes provided for by articles 314, 317, 318, 319, 319-ter, 319-quater, 320, and 322-bis, the payment of a sum equal to the amount of what was unduly received by the public official or the person charged with a public service as pecuniary reparation in favor of the administration to which the public official or the person charged with a public service belongs, or, in the case referred to in article 319-ter, in favor of the administration of justice, is always ordered, remaining the right to compensation for damage unprejudiced."
Law no. 3 of 2019 modified the provision, extending its scope of application also to the private author of corruption (Article 321 of the Penal Code) and redefining its object, today consisting of a "sum equivalent to the price or profit of the crime" (rather than, as in the original version, "the amount of what was unduly received by the public official or the person charged with a public service"), to be paid "to the administration injured" by the conduct of the public agent.
In the opinion of the judge a quo, the pecuniary reparation established by Article 322-quater of the Penal Code – both in the version applicable in the proceeding a quo and in that now in force –, accumulating indefectibly with the confiscation and the compensation for damage due to the administration to which the public agent belongs and being unsusceptible to gradation by the court in function of the economic conditions of the offender and any reparatory conducts put in place by them, would constitute a disproportionate punitive sanction; and would therefore conflict with the principle of proportionality of the penalty, deducible at the internal level from Articles 3 and 27 of the Constitution, as well as – at the supranational level – from Article 49 of the CDFUE, relevant in the Italian order by virtue of Articles 11 and 117, first paragraph, of the Constitution.
4.– The questions – as referred to the censured provision in the text introduced with Law no. 69 of 2015, applicable according to the judge a quo in the main proceeding – are admissible.
This is particularly true for the question raised with reference to Articles 11 and 117, first paragraph, of the Constitution in relation to Article 49 of the CDFUE, and specifically to paragraph 3 of that latter provision, which sanctions the prohibition of disproportionate penalties with respect to the crime.
On one hand, in fact, the judge a quo motivates extensively on the punitive nature of the pecuniary reparation provided for by the censured provision, and therefore on its traceability to the sphere of protection referred to in Article 49 of the CDFUE: which corresponds to the state of the jurisprudence of the Court of Justice of the European Union in the matter, which does not hesitate to trace back to this provision the entire matter of punitive sanctions, regardless of their qualification as "penalties" in a formal sense in the individual national orders (for all, Court of Justice of the European Union, grand section, judgment of March 8, 2022, case C-205/20, NE, concerning a sanction applied by the administrative authority). Whether the measure now under examination effectively possesses such a punitive nature is then a question that pertains to the merit of the questions, and which must be addressed in that seat (infra, 5.1.).
On the other hand, although the referring section does not expressly motivate on the point, there is no doubt that the pecuniary reparation provided for by Article 322-quater of the Penal Code is situated within the scope of application of European Union law pursuant to Article 51 of the CDFUE, and therefore is subject to the respect of the rights and principles established by the Charter, as well as those sanctioned by the Constitution and the European Convention on Human Rights. In fact, a wide range of Union law instruments dictates obligations for Member States in the matter of combating crimes against public administration, also with reference to the sanctions applicable to them (among others: the Convention on the fight against corruption involving officials of the European Communities or of the Member States of the European Union, made in Brussels on May 26, 1997; the Protocol of September 27, 1996, to the Convention on the protection of the European Communities' financial interests, made in Brussels on July 26, 1995 – the so-called "PIF Convention" –; the Framework Decision 2003/568/JHA of the Council, of July 22, 2003, regarding the fight against corruption in the private sector; the Decision 2008/801/EC of the Council, of September 25, 2008, regarding the conclusion, in the name of the European Community, of the United Nations Convention against corruption; the Directive (EU) 2017/1371 of the European Parliament and of the Council, of July 5, 2017, regarding the fight against fraud affecting the Union's financial interests by means of criminal law – the so-called "PIF Directive" –; and, now, the Directive (EU) 2026/1021 of the European Parliament and of the Council, of April 29, 2026, on the fight against corruption).
In establishing incriminating norms that strike at such crimes, and then in concretely applying such norms, each Member State "implements" at the same time Union law, resulting for this very reason bound to respect the Charter, pursuant to the same Article 51, paragraph 1, of the CDFUE.
Finally, it is barely the case to reiterate in this seat that the direct effect of Article 49, paragraph 3, of the CDFUE – affirmed by the jurisprudence of the Court of Justice (CJEU, judgment NE) – does not prevent the proposition of an incident of constitutional legitimacy and an intervention of this Court with the instruments at its disposal (including the declaration of constitutional illegitimacy of the national provision in contrast with the Charter), based on the principles lastly summarized by this same Court in judgment no. 71 of 2026 (point 7), to be understood here entirely recalled.
5.– On the merits, the question is well-founded in reference to Articles 3, 11, and 117, first paragraph, of the Constitution, the latter in relation to Article 49, paragraph 3, of the CDFUE, with the censure formulated in reference to Article 27 of the Constitution remaining absorbed, for the reasons summarized here and argued more extensively in the following.
The pecuniary reparation provided for by Article 322-quater of the Penal Code constitutes a sui generis measure not traceable in a proper sense to the category of penalties, nor to that of measures of a lato sensu "restorative" nature (with a function of patrimonial rebalancing between author and injured party, or in any case of ablation of the profit illicitly acquired by the latter through the commission of the crime). As emphasized by doctrine and unanimous jurisprudence, it is called to perform – in the intention of the legislature – a function of further deterrence and more energetic sanction of the criminal conducts indicated by the provision. This induces this Court to consider it – for the purposes at least of identifying the statute of constitutional and Union guarantees to which it is subject – as a measure of a "punitive" character (infra, 5.1.).
Article 322-quater of the Penal Code – which provides for a consequence of significant afflictiveness for the convicted person, by effect of its combining with numerous other measures that affect in a limiting sense their assets – violates the principle of proportionality applicable to the generality of sanctions of a "punitive" nature, since it does not attribute to the court any instrument to modulate its amount in relation to the concrete offensiveness of the conduct, the degree of responsibility of its author, and their economic and patrimonial situation (infra, 5.2.).
5.1.– The doubts of constitutional legitimacy prospected by the referring section of the Court of Cassation move from the premise of the substantially "punitive" nature of the measure in question.
Its systematic framework, and the very identification of its precise nature, are, to be truthful, anything but easy.
5.1.1.– Certainly, it is not a pecuniary penalty in a proper sense: not so much because the pecuniary reparation does not fall into the list referred to in Article 18, second paragraph, of the Penal Code (remaining firm, obviously, the possibility for the legislature to introduce new types of pecuniary penalties through as many leges speciales), as because there is no normative index of the will of the 2015 legislature, nor of the 2019 one, to subject this measure to the ordinary discipline of pecuniary penalties, with reference specifically to the possibility of their conversion in case of non-payment (Articles 102 and 103 of Law no. 689 of November 24, 1981, bearing "Modifications to the criminal system") or their conditional suspension. Nor does the reparation contribute to the determination of the maximum limit of penalty suspendable pursuant to Article 163 of the Penal Code.
5.1.2.– This, however, does not resolve the question on what is – in positive – the nature of the measure: a theme on which the preparatory works themselves remain quite silent.
From the resolution of such a question depends, on the other hand, the identification of the constitutional, conventional, and Union statute of the measure in word, and therefore of the requirements that condition its very constitutional legitimacy (directly, or through Articles 11 and 117, first paragraph, of the Constitution).
In effect, according to the constant jurisprudence of this Court starting from judgment no. 196 of 2010, the recognition of the "punitive" nature of a measure, even if not formally qualified as a "penalty" and even if not subject to the rules dictated by the Penal Code for penalties, entails the subjection of the measure itself to all or at least some of the guarantees that the Constitution, the ECHR, and the CDFUE dictate in matters of criminal law and process (so, for example, in the matter of non-retroactivity in peius of vehicle confiscation, the same judgment no. 196 of 2010, point 5 and following of the Considered in Law; of non-retroactivity in peius of "punitive" administrative sanctions, judgment no. 68 of 2017, point 6 of the Considered in Law; of retroactivity in mitius of "punitive" administrative sanctions, judgments no. 73 of 2026, point 14 and no. 63 of 2019, point 6.3. of the Considered in Law; of derogation to the res iudicata in the case of declaration of constitutional illegitimacy of an ancillary administrative sanction having a punitive character, judgment no. 68 of 2021, point 6 of the Considered in Law; of applicability of the guarantee of the "right to silence," judgment no. 84 of 2021, point 3.2. of the Considered in Law, as well as order no. 117 of 2019, point 7.1. of the Considered in Law; of application of the conventional guarantee of ne bis in idem, judgments no. 149 of 2022, point 5.2.2. of the Considered in Law and no. 145 of 2020, point 6 of the Considered in Law).
This to the end, highlighted by the same judgment no. 196 of 2010 (point 3.1.3. of the Considered in Law), to prevent that "responses of repressive sign, and therefore with the characters proper to penalties in a strict sense," escape the set of those guarantees thanks to the adoption, by the legislature, of a different "label" or formal qualification.
Such guarantees, instead, do not operate where the substantially punitive nature of the measure should be excluded, which will thus remain subject (only) to the constitutional, conventional, and Union guarantees applicable to the rights affected by the measure itself (so, in the matter of "extended" confiscation, judgment no. 166 of 2025, point 6.2. of the Considered in Law; of weapon confiscation, judgment no. 5 of 2023, point 5 of the Considered in Law; in the matter of the right to silence, judgments no. 78 of 2026, point 7 and no. 148 of 2022, point 4.2.4. of the Considered in Law).
5.1.3.– Now, the "punitive" nature of the measure under examination is supported by the referral order in order to affirm, in particular, its subjection to the constitutional and Union principle of proportionality of penalties and measures of a punitive character.
In effect, the qualification in question is essential so that (through Articles 11 and 117, first paragraph, of the Constitution) Article 49, paragraph 3, of the CDFUE can be evoked, according to which "[t]he penalties inflicted must not be disproportionate with respect to the crime": a provision that the jurisprudence of the Court of Justice has referred also to administrative sanctions, and therefore not constituting "penalties" in a strict sense, but having a substantially punitive character (in this sense, for example, CJEU, judgment NE, as well as – previously – judgment of October 4, 2018, case C-384/17, Link Logistik N&N).
As for the requirement of proportionality, in its dimension of guarantee with respect to the exercise of the discretionary power of the legislature, one could indeed believe that the exact dogmatic and systematic framework of the measure is of minor practical relevance, in the face of the principle, affirmed many times recently by this Court, by virtue of which the review of proportionality imposes itself with respect to every measure that entails a restriction of constitutional rights (ex aliis, judgments no. 203 of 2024, point 4.7. of the Considered in Law; no. 46 of 2024, point 3.1. of the Considered in Law; no. 24 of 2019, point 9.7.3. of the Considered in Law). Rights among which enters, certainly, the right of property, immediately affected by the pecuniary reparation in word.
However, the tracing of this measure to the range of those prevalently characterized by general-preventive purposes and by a nature, in a broad sense, punitive allows calibrating more precisely the review of constitutional legitimacy of the censured discipline around the general requirement of proportion of the sanctioning response with respect to the objective and subjective gravity of the illicit fact committed. A requirement, the latter, which this Court deduces from Articles 3 and 27, first and third paragraphs, of the Constitution as far as penalties stricto sensu are concerned; and from only Article 3 of the Constitution – possibly in combination with the constitutional norms that protect the individual rights affected by the sanction – as far as measures that share with penalties a function in a broad sense "punitive" are concerned (judgments no. 95 of 2022, point 4.1. of the Considered in Law; no. 185 of 2021, point 4 of the Considered in Law; no. 112 of 2019, points 8.2.2. and 8.2.3. of the Considered in Law).
According to the jurisprudence of this Court, in fact, sanctions in any case endowed with a "punitive" character "share [...] with penalties the reactive character with respect to an illicit, for whose commission the order provides that the author suffers a suffering in terms of restriction of a right (different from personal liberty, whose compression in a sanctioning key is reserved for the penalty); restriction that finds, therefore, its "legal cause" precisely in the illicit that constitutes its prerequisite. In the same way as for penalties – even in the face of the wide discretion that competes to the legislature in the identification of illicit and in the choice of the relative punitive treatment – also for administrative sanctions arises, therefore, the need that a relationship of congruence between the sanction and the gravity of the sanctioned illicit not manifestly fail; an eventuality in which the compression of the right would become unreasonable and unjustified" (again, judgment no. 185 of 2021, point 4 of the Considered in Law, italics added. On the necessary proportionality of administrative sanctions of a "punitive" nature with respect to the gravity of the illicit, judgments no. 116 of 2025, point 4 of the Considered in Law, no. 104 of 2025, point 6.5. of the Considered in Law, no. 103 of 2025, point 6.1. of the Considered in Law, no. 101 of 2025, point 10 of the Considered in Law; no. 52 of 2024, point 3 of the Considered in Law; no. 40 of 2023, point 5.2. of the Considered in Law; no. 266 of 2022, point 5.1. of the Considered in Law; no. 246 of 2022, point 9.1. of the Considered in Law; judgment no. 212 of 2019, point 6.2.1. of the Considered in Law. Similarly, on the need for proportionality of tax sanctions with respect to the gravity of the violation, judgments no. 93 of 2025, points 2.1. and 7 of the Considered in Law and no. 46 of 2023, point 13 of the Considered in Law).
Hence the relevance of such qualification also for the purposes of the application of the guarantee of proportionality in its properly "domestic" dimension, anchored by the referent to the parameter of Article 3 of the Constitution.
5.1.4.– Before examining directly the arguments that militate against and in favor of the qualification of the pecuniary reparation under examination as a "punitive" sanction, it is convenient to underline – to avoid a frequent misunderstanding – that recognizing the "afflictive" character of a measure is not yet equivalent to ascribing to it a "punitive" function. A measure can well be "afflictive" – and that is to result also severely restrictive of the fundamental rights of its addressee – without having any "punitive" character: an expropriation for public utility, the hospitalization of a psychiatric patient in a residence for the execution of security measures (REMS), and even more an order of precautionary custody against a defendant are all certainly "afflictive" measures, to which however a punitive purpose is quite extraneous.
In particular, this Court has excluded the punitive nature of measures limiting the right of property when they do not find their cause in an illicit conduct of their addressee, which operates at most as an "occasion" of public intervention; but perform essentially a "preventive" function of neutralization or control of a danger coming from hypothetical future conducts of the same addressee (for example, judgment no. 5 of 2023, point 5 of the Considered in Law). On the other hand, the punitive nature of measures that are in any case afflictive of the individual rights of the latter has been excluded when they, while effectively finding their cause in previous illicit conducts of the same and being therefore qualifyable in a broad sense as "sanctions" of an illicit behavior, have essentially a "restorative" function of the status quo ante, that is, of the legal situation preceding the commission of the illicit (judgments no. 166 of 2025, point 6.2. of the Considered in Law and no. 24 of 2019, point 10.4.1. of the Considered in Law. In the same sense, European Court of Human Rights, judgment of December 19, 2024, Episcopo and Bassani against Italy, paragraph 74, as well as judgment of January 21, 2025, Garofalo and others against Italy, paragraphs 99-140, and therein further references).
In such verification, the circumstance that the measure is applied by the criminal court or by a different authority does not assume a decisive relevance: the punitive nature of the sanction can be predicated (and has been in concrete recognized by this Court) in relation to sanctions applied by civil judges (judgment no. 145 of 2020) or by administrative authorities (so in the cited judgments no. 73 of 2026, no. 149 of 2022, no. 84 of 2021, no. 68 of 2021, no. 63 of 2019, no. 68 of 2017, no. 196 of 2010, as well as order no. 117 of 2019); and conversely has been excluded in relation to measures applied by the criminal court with the same sentencing judgment (so in the cited judgments no. 166 of 2025 and no. 5 of 2023).
Within these coordinates of maximum, one must, therefore, carry out the verification on the nature of the pecuniary reparation referred to in Article 322-quater of the Penal Code.
5.1.5.– In favor of the qualification of the pecuniary reparation now under examination as a measure of an essentially "restorative" nature of the status quo ante, more specifically aimed at ensuring a patrimonial rebalancing between author and injured party by the crime, militate two main arguments.
On one side, the nomen iuris used by the legislature, and in particular the use of the expression "reparation," evokes various places of criminal legislation that discipline the hypothesis in which the culprit has "repaired the damage entirely" towards the person, through the classic instruments – expressly qualified as "civil sanctions" in Title VII of Book I of the Penal Code – of restitutions and compensation (for example, Articles 62, number 6, 162-ter and 341-bis, fourth paragraph, of the Penal Code).
On the other, the proceeds of the measure are devolved to individual public administrations injured by the conduct of the public agent, rather than to state funds which are the ordinary recipients of the proceeds of pecuniary penalties and confiscations.
Other elements are, however, dystonic with respect to such a qualification.
First of all, the measure is ordered ex officio by the (only) criminal court with the sentencing judgment, rather than upon request of the injured party. This circumstance marks a rift between Article 322-quater of the Penal Code and its historical antecedent signaled by authoritative doctrine, Article 38 of the Zanardelli Code of 1889, which provided that "[b]esides restitutions and compensation for damages, the judge, for every crime that offends the honor of the person or the family, even if it has not caused damage, can assign to the injured party, who makes a request, a sum determined by way of reparation" (italics added). And it marks, likewise, a clear distinction between the institution now under examination and Article 12 of Law no. 47 of 1948, which also provides, today, that "[i]n the case of defamation committed by means of the press, the injured party can ask, besides compensation for damages pursuant to Article 185 of the Penal Code, a sum by way of reparation. The sum is determined in relation to the gravity of the offense and the diffusion of the print" (italics added).
Secondly, unlike what happened in relation to Article 38 of the Zanardelli Code and what still happens today for the reparation consequent to defamation, the amount of the sum attributed to the injured party is fixed directly by the law, with reference "to the amount of what was unduly received by the public official or the person charged with a public service" in the original version of the provision, and to "a sum equivalent to the price or profit of the crime" in the current version: sums, one and the other, that have no necessary correspondence, not even approximate, with the entity of the offense brought to the public administration, if not perhaps in the case of embezzlement (in which the profit derived by the offender effectively entails a corresponding impoverishment of the administration).
Finally, and above all, the pecuniary reparation under Article 322-quater of the Penal Code – as well as the homonymous sanction provided for by Article 38 of the Zanardelli Code and, today, by Article 12 of the law on the press – is owed, by express normative indication, "remaining the right to compensation for damage unprejudiced." An incise which, despite the contrary reading of a decision of the Court of Cassation also moved by the appreciable intent to attenuate the rigor of the prediction (Cass., no. 27422 of 2025), cannot be interpreted if not in the sense of the legislative will to impose the accumulation of the measure with the entire (and not only with the "further") compensation for damage.
More specifically, the pecuniary reparation ex Article 322-quater of the Penal Code is conceived by the legislature as destined to accumulate with the compensation for damages, patrimonial and non-patrimonial, which pursuant to Article 185, second paragraph, of the Penal Code is the object of the civil action eventually exercised in the criminal process by the injured public administration.
Furthermore, as far as the position of the public agent who is also a public employee is concerned – and regardless here of the question relative to the relations between compensatory civil action and accounting action (on which, lastly, see Court of Cassation, civil united sections, judgment no. 27404 of 2025 and order no. 17634 of June 26, 2024) –, the pecuniary reparation also accumulates with the financial damage as ascertained by accounting jurisdiction, inclusive of both patrimonial damage (including the so-called "bribe damage") and damage to the image (in turn presumptively equal to double the sum of money or the patrimonial value of another utility illicitly perceived by the employee, pursuant to Article 1, paragraph 1-sexies, of Law no. 20 of 1994).
Accounting jurisprudence affirms, in effect, that the pecuniary reparation ex Article 322-quater of the Penal Code is an institution of a different nature and not overlapping with damage to the image "not so much and not only because the criminal norm leaves "the right to compensation for damage unprejudiced" – declinable in ordinary jurisdiction regardless of the constitution of civil party – rather in consideration of the assumption that in the accounting judgment the goal pursued is the restoration of the damage suffered by the Public Administration within the limits attributable to the author of the illicit," while the pecuniary reparation would be characterized by an "afflictive-punitive character that sanctions and that does not aim to compensate or to repair the damage brought to the injured administration (damage that, with objective evidence, can be far greater than the so-called price of the crime)"; so that the two items would be characterized by "absolute autonomy" and "non-overlapping" (Court of Audit, jurisdictional appeal section for the Sicilian Region, judgment no. 139/A/2021 of August 25, 2021; in the sense of the non-deductibility from damage to the image of the sums already paid sub specie of pecuniary reparation, see also Court of Audit, jurisdictional section for the Tuscan Region, judgment no. 113 of October 2, 2025; jurisdictional section for the Lombardy Region, judgment no. 44 of March 16, 2026).
The same principles are applied by accounting jurisdiction also in the matter of patrimonial financial damage, from which it is believed the sum already paid by the convicted person in criminal seat to the injured administration by way of pecuniary reparation is not deductible (Court of Audit, third central jurisdictional appeal section, judgment no. 177 of December 4, 2025; jurisdictional appeal section for the Sicilian Region, judgment no. 22/A/2025 of March 18, 2025; jurisdictional section for the Apulian Region, judgment no. 248 of August 7, 2023; jurisdictional section for the Ligurian Region, judgment no. 15 of February 3, 2023).
Nor could a restitutionary purpose (rather than compensatory) reasonably be ascribed to the pecuniary reparation under examination, destined to be mandatorily applied by the court with the sentencing judgment, since – saving the case of embezzlement, in which a restitutionary obligation, pursuant to Article 185, first paragraph, of the Penal Code, appears easily configurable – the generality of crimes against public administration is not susceptible to generating such an obligation.
Ultimately, that assigned to the injured administration on the basis of Article 322-quater of the Penal Code is a sum characterized by an evident ultracompensatory purpose, which ensures to the injured administration a patrimonial performance exceeding those that can be disposed in its favor by way of damages or restitutions in the same criminal proceeding, in an eventual separate civil judgment or, still, in the judgment of accounting responsibility.
5.1.6.– In another respect, the pecuniary reparation referred to in Article 322-quater of the Penal Code is evidently conceived by the legislature as a measure that accumulates, also, to the mandatory confiscation of the price or profit of the crime disposed pursuant to the previous Article 322-ter of the Penal Code.
This is demonstrated already by the topography of the two provisions, placed one after the other in the same Section dedicated to crimes against public administration and disciplining two legal consequences of the same crimes, both mandatory in the an and in the quantum (the latter moreover coinciding, with a practical effect of doubling the same patrimonial sacrifice placed on the offender), without any normative indication relative to any eventual subsidiarity, or yielding, of one measure with respect to the other. Measures, both, destined to be disposed with the same sentencing judgment.
Now, according to the reconstruction lastly accepted by the united sections of the Court of Cassation (judgment no. 13783 of 2025), mandatory confiscation of the price or profit, also by equivalent, does not have a punitive character, but rather aims to restore the patrimonial situation of the offender preceding the commission of the crime, regardless of the circumstance that the confiscation reaches goods directly derived from the crime, or is disposed by equivalent on goods of which the offender has availability.
In substance, this type of confiscation – object among other things of a thick network of Union obligations, culminated in Article 12 of the recent Directive 2024/1260/EU of the European Parliament and of the Council, of April 24, 2024, regarding the recovery and confiscation of assets – performs the function of subtracting from the offender the unjust enrichment determined by the commission of the crime, launching to all the associates the message that "crime does not pay." Such function was recently recognized also by the ECHR, which noted that the measure in question – even if imposed by the criminal court with the sentencing judgment – has characters that make it assimilable more to the restitution of unjustified enrichment provided for by civil law than to a pecuniary penalty, not being able among other things to exceed the measure of the patrimonial increase achieved by the offender through the commission of the crime, and being insensitive to the degree of his culpability (ECHR, Episcopo and Bassani against Italy, paragraph 74).
Forms of confiscation that, conversely, entail ablations of goods that exceed what is necessary to restore in the assets of the offender the situation preceding the commission of the crime can certainly be provided (and are in fact provided for by national and Union law), but have for this very reason a "punitive" nature, characterizing themselves by the infliction of a further and distinct patrimonial prejudice with respect to the mere ablation of the profit illicitly acquired: which determines a worsening of his patrimonial situation with respect to the status quo ante (so, in relation to the confiscation of the entire "product" and of the "assets used" to commit crimes of market manipulation, as such macroscopically exceeding the patrimonial advantage obtained from the crime, judgment no. 112 of 2019, point 8.3.4. of the Considered in Law; similarly, in relation to the confiscation of the means used to commit the crime, judgment no. 7 of 2025, point 3.1.2. of the Considered in Law). Which entails their necessary subjection to the standards of guarantee that connote, precisely, this type of sanctions.
Also under this profile, therefore, the pecuniary reparation provided for by Article 322-quater of the Penal Code, doubling the amount object of mandatory confiscation pursuant to the previous Article 322-ter of the Penal Code, cannot justify itself as an instrument merely aimed at the restoration in favor of the offender of the patrimonial situation preceding the crime, already implemented by means of the confiscation of the profit and of the price; but it is profiled rather as an instrument to inflict on the offender a net patrimonial sacrifice, in a key of punitive sanction for the illicit committed.
Indeed, a recent judgment of the Court of Cassation has argued, on the basis of an interpretation conformable to the Constitution of Article 322-quater of the Penal Code, that the pecuniary reparation ivi provided should not be disposed when the convicted person has been touched, at the same time, by the confiscation of the profit or of the price of the crime pursuant to Article 322-ter of the Penal Code (Cass., no. 23203 of 2024). As the current referral order rightly observes, however, such a solution finds no comfort in the text of the two provisions, and would entail the systematic inapplicability of Article 322-quater of the Penal Code in the face of the mandatory nature of the confiscation provided for by the previous provision – confiscation, moreover, normally preceded by the seizure of the sum destined to become the object of the patrimonial ablation.
Entirely consistent with the "internal" logic of the confiscation of profit is, instead, the jurisprudential orientation (of which account is given punctually in the referral order: supra, point 1.6.) which excludes confiscation in the hypothesis in which the offender has already fully paid a sum equal to the price or the profit of the crime to the injured administration: orientation which, moreover, has a precise correspondence in the regime of administrative liability from crime of entities (Article 19, paragraph 1, of Legislative Decree no. 231 of 2001), and which allows among other things to avoid that the indefectibility of the seizure and the subsequent confiscation of the profit in favor of the treasury end up prejudicing the interests of the injured party to obtain the restitutions and compensation for the damage suffered. In the very moment in which he returns the profit to the injured administration, or in any case compensates the latter by paying it a sum corresponding or in hypothesis even superior, the offender spontaneously restores his own patrimonial situation anterior to the crime and thus makes useless the same confiscation of profit (or of price): whose imposition would end up performing, at this point, a punitive function extraneous to its legislative ratio.
But this last opportune tempering operates, precisely, only in relation to the confiscation referred to in Article 322-ter of the Penal Code, not already with reference to the measure, here under examination, of the pecuniary reparation referred to in Article 322-quater of the Penal Code, which is provided "remaining the right to compensation for damage unprejudiced": and therefore also regardless of the occurred compensation or restitutions to the injured party.
Which, also in this case, militates for the ascription to the measure of a sanctioning-punitive function with respect to the illicit committed.
5.1.7.– In conclusion: the pecuniary reparation under examination has, on one side, ultracompensatory effects (also with reference to items of non-patrimonial damage, inclusive of damage to the image) towards the injured administration (supra, 5.1.5.); and, on the other, effects towards the convicted person that exceed the restoration of his patrimonial situation anterior to the crime, such restoration being already ensured by the concurrent application of confiscation, or by the restitutions and compensation that the offender has spontaneously paid to the administration itself (supra, 5.1.6.).
Excluded therefore so much the "compensatory" or "restitutionary" nature towards the injured party, as that "restorative" of the status quo ante with respect to the author, it does not remain but to recognize – in harmony with what argued not only by the referral order, but also by authoritative voices of doctrine – that the measure under examination, even if not constituting a "penalty" in the technical sense used in the Penal Code, was introduced by the legislature in a key of further deterrence and of more energetic sanction of the criminal conducts interested, with respect to what already the custodial penalties provided in case of conviction for crimes against public administration are able to ensure. Which has induced the same doctrine, with evaluation that this Court shares, to recognize it a frankly "punitive" function, in spite of the nomen iuris used by the legislature.
It does not surprise therefore that, as the judge a quo reminds, the same jurisprudence of legitimacy has attributed to the measure under examination the nature of "ancillary civil sanction" with "undoubted punitive connotation" (Cass., no. 16098 of 2020), so much so as to lead back expressly the relative application in the absence of legal prerequisites to the figure of the "illegal penalty" (Court of Cassation, Sixth Criminal Section, judgments of April 27-September 8, 2021, no. 33260 and no. 12541 of 2019).
Qualifications, all, which not by chance echo those that already the coeval doctrine attributed to Article 38 of the Zanardelli Code, defined as "subsidiary penalty," or "private fine," destined to perform a function that the same ministerial report indicated in the terms of "criminal complement," tending to strengthen the effectiveness of the repression of the criminal conduct ("Ministerial report on Book I of the draft penal code presented to the Chamber of Deputies by s.e. the Minister of grace and justice and of cults Zanardelli on November 22, 1887," XLI, in comment on the original Article 37 of the project); and which echo likewise those today attributed to the pecuniary reparation referred to in Article 12 of the law on the press, qualified by jurisprudence as "exceptional hypothesis of private pecuniary penalty" (Court of Cassation, Third Civil Section, judgment no. 6490 of March 17, 2010), which is added to all the other items of compensation for damage (including the moral one) with the principal scope of strengthening the deterrent effect of the criminal norm, like the true and own penalties.
5.2.– This placed, this Court believes that the pecuniary reparation referred to in Article 322-quater of the Penal Code does not pass the test of proportionality of punitive sanctions imposed, in unison, by Article 3 of the Constitution and Article 49, paragraph 3, of the CDFUE.
5.2.1.– In this regard, it is necessary first of all to consider that it inserts itself into a framework of patrimonial measures that find their cause in the ascertainment of the criminal responsibility of the offender, which accumulate with the custodial penalty and with the ancillary ones (besides the extra-penal consequences of the conviction itself).
Such an overall framework determines very burdensome consequences for the interested party.
It suffices to consider, on one side, that the amount owed to the interested public administration by way of pecuniary reparation coincides with the amount of the autonomous mandatory confiscation of money or assets of which the convicted person has availability; and, on the other, that double of that amount is owed by the convicted public agent to the same administration by way of compensation for damage to the image.
At the final count, this translates, for the interested party, into the obligation to pay to public administrations four times the amount determined pursuant to Article 322-quater of the Penal Code. To this amount must then be added the sums owed by way of compensation for further financial damage (in the accounting judgment) and/or further damages recognized to the injured public administration and to eventual third parties who have constituted themselves as civil parties in the criminal judgment, without counting the patrimonial losses consequent to the disciplinary sanctions to which the public employee is likewise subject.
Even though each of these patrimonial consequences pursues a distinct purpose, so that the disproportion of the measure under examination – contrary to what seems to believe the judge a quo – cannot be inferred tout court from the mere circumstance of its cumulability with other obligations of a patrimonial nature weighing on the offender, but having a different function, this Court cannot but take account, at least as a starting data for the evaluation of proportionality, of the particularly burdensome consequences that loom in their complex on the person convicted of the crimes listed in Article 322-quater of the Penal Code.
5.2.2.– In the face, therefore, of this undoubted "incremental" incidence of the measure under examination with respect to a framework already characterized by a plurality of afflictive measures incident in various titles on the assets of the offender, a framework in large part inspired by a purely multiplicative logic of the same base amount, the data that most differentiates the pecuniary reparation referred to in Article 322-quater of the Penal Code from the pecuniary penalties traditionally understood is the legislative predetermination of its amount, anchored indefectibly to the value of what was unduly received by the public agent (or, after the novella of 2019, to the value of the price or the profit).
Article 322-quater of the Penal Code does not confer to the court any possibility of commisurating the amount of pecuniary reparation neither to the concrete gravity of the crime, in objective terms (sub specie of effective lesion of the patrimonial or non-patrimonial sphere of the offended public administration) and subjective (sub specie of greater or lesser culpability); nor to the entity of the contribution of the individual offender in case of concurrence of persons (all the competitors having been anzi believed by jurisprudence, downstream of the 2019 novella, obligated for the entire: Court of Cassation, Sixth Criminal Section, judgment no. 14229 of January 25-April 4, 2023); nor – again – to the specific economic and patrimonial conditions of each defendant.
5.2.3.– From this derives a normative asset incompatible with at least two corollaries that this Court has drawn from the principle of proportionality of penalties, applied in multiple occasions also with reference to sanctions different from penalties, but to them joined by their nature (prevalently) "punitive."
The first corollary, common to every type of punitive sanction, requires that it be "individualized," and that is commisurated by the court (or in any case by the authority in charge of its imposition) taking into account all the circumstances of the concrete case, which result relevant to determine – in particular – the objective and subjective gravity of the illicit (in this sense, for example, judgments no. 112 of 2019, point 8.3.6. of the Considered in Law; no. 46 of 2023, point 14 of the Considered in Law).
Such an requirement is not satisfied by a measure that, while not being properly traceable to the paradigm of the "fixed" sanction (in as much as such tendentially incompatible with the Constitution, according to the criterion enunciated by judgment no. 50 of 1980 and then applied, ex aliis, by judgments no. 40 of 2023 and no. 185 of 2021), is however anchored ex lege to the criterion – at most roughly indicative of the concrete objective gravity of the crime – of the quantum perceived by the public official or, today, to the price or profit globally achieved through its commission: little imports if by a single author or by multiple persons in concurrence, and regardless of the degree of participation and culpability of each.
The second corollary, specifically calibrated – instead – on measures of a punitive character that affect the assets of the interested subject, requires that their amount take into account the economic and patrimonial conditions of the offender at the moment of the conviction, yes as to ensure a subjectively equal impact of the sanction on persons who have different economic availability (judgment no. 28 of 2022, point 6.2. of the Considered in Law; similarly, more recently, judgment no. 7 of 2025, point 3.2. of the Considered in Law).
Also this last requirement is not ictu oculi satisfied by a measure like that under examination, which provides for every convicted person the obligation to pay a sum equal to what was unduly perceived (in the original version of Article 322-quater of the Penal Code) or to the value of the price or the profit of the crime (in the version post law no. 3 of 2019): a sum that could not be anymore in the availability of the offender, or that could however result macroscopically excessive with respect to his effective financial availability at the moment of the conviction. Which, moreover, would not allow him to face an obligation to which must be necessarily subordinated the same eventual conditional suspension of the penalty (Article 165, fourth paragraph, of the Penal Code).
6.– To the vulnus thus highlighted it is possible to provide a remedy through the simple ablation of the censured provision.
In effect, "the need to have recourse to a pronouncement of the manipulative type, that substitutes the censured sanction with another conformable to the Constitution, poses itself indispensably only when the gap of punishability that would follow from an ablative pronouncement, not fillable through the expansion of coexisting sanctioning predictions, reveals itself forer of "unsustainable voids of protection" for the interests protected by the incised norm (judgment no. 222 of 2018): as, for example, when from it derived a maimed protection of fundamental rights of the individual or of goods of particular relief for the entire community with respect to grave forms of aggression, with eventual consequent violation of constitutional or supranational obligations" (judgment no. 185 of 2021, point 3 of the Considered in Law).
In default of such a situation, the intervention of this Court can well limit itself to the ablation, total or partial, of the censured provision (judgments no. 7 of 2025, point 4 of the Considered in Law; no. 51 of 2024, point 4 of the Considered in Law; no. 46 of 2024, point 4.2. of the Considered in Law), remaining then entrusted to the discretion of the legislature the eventual identification of alternative solutions to that declared constitutionally illegitimate.
Such a situation verifies itself in the case now under examination, in which the incriminating norms of the crimes listed by Article 322-quater of the Penal Code remain in any case garrisoned by other sanctions of a custodial and non-custodial character, which ensure to the state the indispensable minimum level of protection to the legal goods protected, of essential relief for the community.
Article 322-quater of the Penal Code, in the version introduced by Law no. 69 of 2015 and applicable ratione temporis in the proceeding a quo must, therefore, be declared constitutionally illegitimate.
7.– The declaration of constitutional illegitimacy must be extended in a consequential way, pursuant to Article 27 of Law no. 87 of March 11, 1953 (Norms on the constitution and functioning of the Constitutional Court), to the version currently in force of Article 322-quater of the Penal Code, which presents the same vices of the previous provision.
8.– Finally, the declaration of constitutional illegitimacy must also extend to Article 165, fourth paragraph, of the Penal Code, introduced with Law no. 69 of 2015, which has the sole function of providing that, in case of conviction for a crime to which the pecuniary reparation referred to in Article 322-quater of the Penal Code applies, the court must subordinate the conditional suspension of the penalty to the payment of the reparation itself.
9.– It remains entrusted to the prudent evaluation of the legislature the possibility of providing, beside the custodial sanctions, sanctions of a pecuniary nature with a reinforcing function of the deterrent effect of the incriminating norms in question, also in relation to the recommendations in the purpose coming from various international organisms.
for these reasons
THE CONSTITUTIONAL COURT
1) declares the constitutional illegitimacy of Article 322-quater of the Penal Code, in the text introduced by Article 4, paragraph 1, of Law no. 69 of May 27, 2015 (Provisions regarding crimes against public administration, mafia-type associations, and false accounting);
2) declares, in a consequential way, pursuant to Article 27 of Law no. 87 of March 11, 1953 (Norms on the constitution and functioning of the Constitutional Court), the constitutional illegitimacy of Article 322-quater of the Penal Code, in the text modified by Article 1, paragraph 1, letter q), of Law no. 3 of January 9, 2019 (Measures for the fight against crimes against public administration, as well as regarding the statute of limitations for crimes and the transparency of political parties and movements);
3) declares, in a consequential way, pursuant to Article 27 of Law no. 87 of 1953, the constitutional illegitimacy of Article 165, fourth paragraph, of the Penal Code.
So decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on May 4, 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Redactor
Roberto MILANA, Director of the Chancery
Deposited in the Chancery on June 18, 2026
The anonymized version is conformable, in the text, to the original