JUDGMENT NO. 114

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 concerning the constitutional legitimacy of Articles 69 and 69-bis of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the execution of measures restricting or limiting liberty), initiated by the Supervisory Magistrate of Naples, in the supervisory proceedings upon the application of V.T., by order dated September 11, 2025, registered as no. 207 of the 2025 registry of orders and published in the Official Gazette of the Republic no. 44, first special series, of the year 2025, for which the hearing in chambers was scheduled for May 18, 2026.

Having examined the act of intervention of the President of the Council of Ministers;

having heard in chambers on May 20, 2026, the Reporting Judge Roberto Nicola Cassinelli;

having deliberated in chambers on May 20, 2026.

Considerations of Fact

1.– The Supervisory Magistrate of Naples, by order dated September 11, 2025, registered as no. 207 of the 2025 registry of orders, raised – with reference to Articles 3 and 27, third paragraph, of the Constitution – questions of constitutional legitimacy regarding Articles 69 and 69-bis of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the execution of measures restricting or limiting liberty).

1.1.– The referring judge reports being called upon to rule – following the transmission of the files by the Judge for Preliminary Investigations of the Ordinary Court of Nola, who recognized the jurisdiction of the aforementioned Supervisory Magistrate – on a request for early release filed by V.T., sentenced to two years and ten months of imprisonment, converted into substitute community service, by judgment of the GIP of Nola, issued on May 31, 2023, and which became final on June 17 thereafter.

The court a quo specifies that it does not intend to contest the attribution of jurisdiction, but rather to challenge the constitutional legitimacy of the norms under which it was deemed to be within its remit. To this end, it states that community service was included among the substitute sentences for short custodial sentences listed under Article 20-bis of the Criminal Code, introduced by Article 1, paragraph 1, letter a), 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 criminal proceedings, as well as matters of restorative justice and provisions for the swift resolution of judicial proceedings), adding that Articles 47, paragraph 12-bis, 51-bis, 51-quater, and 53-bis of the Penitentiary Law apply to it, as compatible, according to the provisions of Article 76 of Law no. 689 of November 24, 1981 (Amendments to the criminal system).

In particular, relevant in this context is Article 47, paragraph 12-bis, of the Penitentiary Law, which provides that a person assigned to probation at the social service, who has demonstrated concrete social recovery during the period of probation, may be granted the sentence reduction referred to in Article 54 of the Penitentiary Law, which is useful for the purposes of early release. However, the dispute – according to the referring judge – concerns precisely "the jurisdiction to grant early release to a prisoner sentenced to the substitute penalty of community service." If it is true, in fact, that the Court of Cassation "has emphasized the literal data," consisting of Articles 69 and 69-bis of Law no. 354 of 1975, "which uniquely entrust the application of early release to the supervisory magistrate," thus affirming that its jurisdiction "extends also to early release requested by a prisoner sentenced to substitute community service" (referencing the judgments of the First Criminal Section, March 7–June 17, 2025, no. 22662, and March 20–May 21, 2025, no. 18955), it has nonetheless "acknowledged that it would have been more linear to attribute such jurisdiction to the enforcement judge," that is, to the same judicial body that imposed the substitute sentence, in accordance with Articles 63, 64, and 66 of Law no. 689 of 1981. This is because, the referring judge points out, "such judicial body remains competent to decide on all matters relating to the performance of community service, maintaining contact for this purpose with the external penal execution office."

Indeed, legitimacy jurisprudence – the referring judge again stresses – has highlighted that the application of the substitute sanction of community service results in the "functional jurisdiction of the judge who issued the judgment regarding all matters related to its execution, until the declaration attesting to its definitive completion and declaring all penal effects extinguished." Issues, therefore, that pertain both to the modification of the methods of execution of the sanction (as provided for by Article 64, second paragraph, of Law no. 689 of 1981, as amended by Article 71, paragraph 1, letter n, of the aforementioned Legislative Decree no. 150 of 2022), in relation to which that judge proceeds in accordance with Article 667, paragraph 4, of the Code of Criminal Procedure, and to the revocation in case of non-compliance with the requirements pursuant to Article 66 of Law no. 689 of 1981, reserved to that judge even in the event that other substitute penalties of a different nature concur (Article 70 of the last-cited law).

1.2.– With this premise, the Neapolitan Supervisory Magistrate doubts the constitutional legitimacy of Articles 69 and 69-bis of the Penitentiary Law, "as interpreted by living law," that is, "in the part where they attribute to the supervisory magistrate the jurisdiction to decide on early release regarding a subject sentenced to the substitute penalty of community service"; a doubt deemed relevant in the proceedings a quo, as it must apply the challenged norms "in affirming its own jurisdiction and, consequently, in proceeding with all necessary factual verification."

Regarding the non-manifest groundlessness of the questions, it is deemed "plausible" with reference to Articles 3 and 27, third paragraph, last part, of the Constitution, and this is precisely on the basis of the "legal arguments used by the Supreme Court of Cassation to affirm the jurisdiction of the supervisory magistrate."

Indeed, "once the difference between the regime of substitute semi-liberty and substitute home detention, for the execution of which the jurisdiction of the supervisory magistrate is expressly provided by law, is identified, compared to substitute community service, for the execution of which the jurisdiction of the enforcement judge is expressly established" (in this regard, the court a quo cites the provision of Article 661, paragraph 1-bis, of the Code of Criminal Procedure, inserted by Article 38, paragraph 1, letter d, number 2, of Legislative Decree no. 150 of 2022), "such difference produces its effects also on the judgment regarding the degree of rehabilitation achieved by the prisoner." In this regard, the referring judge notes that a person sentenced to substitute community service, throughout the execution of the sentence, "is removed from the assessment of the supervisory magistrate," so that it appears "manifestly unreasonable" – and, therefore, an expression more of "an oversight" than of a "deliberate system choice" – a discipline that provides for "the intervention of said magistrate only at the reward moment of early release," positioning itself as an "eccentric element compared to the remaining regulatory system." The Court of Cassation itself would, moreover, be aware of this, having highlighted, not by chance, how "systemic needs" would have "advised a concentration of jurisdiction also in relation to the granting of early release to the enforcement judge."

On such grounds, therefore, the court a quo doubts the intrinsic reasonableness of Articles 69 and 69-bis of the Penitentiary Law, insofar as they do not provide for the jurisdiction of the enforcement judge regarding early release for those sentenced to substitute community service.

Likewise, the aforementioned norms are suspected of violating Article 27, third paragraph, last part, of the Constitution, because the decision of the supervisory magistrate "risks being merely formal and therefore incapable of capturing, for example, the minor nature of certain violations, thus prejudicing the rehabilitative path upon which even the prisoner sentenced to a substitute penalty is embarked." Nor, on the other hand, the referring judge concludes, "would it be useful at this point to object" that the supervisory magistrate may also interact with the external penal execution office or with law enforcement, "because even such interaction would have the genetic defect of being merely formal and referred to an executive relationship that for every other aspect is regulated by another judge."

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, concluding for the declaration of manifest groundlessness of the questions raised.

2.1.– Having summarized, first of all, the terms of the initiative of the referring judge, the President of the Council of Ministers reconstructs, preliminarily, the regulatory framework in which the challenged norms are inserted.

It observes, therefore, that substitute community service "was introduced into our legal system as a substitute penalty for custodial sentences, imposed for any crime in a measure not exceeding three years," with Article 20-bis of the Criminal Code, inserted by Article 1, paragraph 1, letter a), of Legislative Decree no. 150 of 2022, implementing, on this point, the principles and guiding criteria set forth by Article 1, paragraph 17, of Law no. 134 of September 27, 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as matters of restorative justice and provisions for the swift resolution of judicial proceedings). This is "a program-sentence," like substitute semi-liberty and substitute home detention, from which it differs, among other things, because it "presents a lower degree of impact on the freedom of the prisoner, being completely devoid of a custodial component" (the explanatory report to Legislative Decree no. 150 of 2022 is cited). With the judgment or with the criminal decree of conviction, the judge who ordered the substitute community service instructs the external penal execution office, as well as the territorially competent police bodies, to verify the actual performance of said work, it being also incumbent upon the former to report to the judge also "on the conduct and the path of social reintegration" (Article 63, third paragraph, of Law no. 689 of 1981).

As for early release, pursuant to Article 54 of the Penitentiary Law, it is granted – the President of the Council of Ministers points out – to prisoners who have demonstrated participation in rehabilitative work and is equal to forty-five days for every semester of sentence actually served (paragraph 1). According to the consolidated legitimacy jurisprudence, said reward benefit can be applied – by virtue of the combined provisions of Articles 57 and 76 of Law no. 689 of 1981, 47, paragraph 12-bis, and 54 of the Penitentiary Law – in favor of prisoners sentenced to the substitute penalty of community service, the relative jurisdiction pertaining to the supervisory magistrate (Court of Cassation, First Criminal Section, judgment January 10–March 13, 2025, no. 10302, is cited). Unlike major substitute penalties, that is, substitute semi-liberty and substitute home detention, in relation to which jurisdiction, during execution, belongs to the supervisory magistrate, in the case of the milder measure of community service it remains with the enforcement judge, except for the benefit of early release.

2.2.– Thus reconstructed the system in which the challenged norms are inserted, the intervener considers the questions raised manifestly groundless.

It refutes, in fact, the twofold assumption of the referring judge, summarized as follows: that the "double jurisdiction" – of the enforcement judge and the supervisory magistrate – regarding community service "would result in being discordant (and therefore unreasonable) because it is not in line with the systematics of the institutions," and, furthermore, that "the control operated by the supervisory judge, in order to grant or not the early release, would result in being formal, in violation of the principle of control over the effective rehabilitation of the sentence, given that he does not have the previous control over the execution of the sentence itself."

Such complaints, however, "more relevant to the merits and the appropriateness of the legislative choice," would disregard – according to the President of the Council of Ministers – "the complete analysis and interpretation of all the institutions involved."

Indeed, since community service, among the substitute sanctions for short custodial sentences, "is the mildest," being "completely devoid of a custodial component," it would be entirely "rational that the jurisdiction over the execution of the substitute sentence resides with the criminal enforcement judge who ordered it," as it must "be executed, precisely, outside the penitentiary circuit itself." Conversely, "the granting of early release can only always and in any case be the exclusive jurisdiction of the supervisory judge who, according to the law, is the (only) judge functionally competent for his/her specialization in the delicate matter." Consequently, it would be precisely "the solution advocated by the referring judge" that leads to "discordant and eccentric results from the system," as it must be excluded "that the judge of criminal cognition and then of the execution of the measure can also assume the functions of a supervisory judge, albeit in the only limited case that is examined."

Manifestly groundless would also be the complaint – of violation of Article 27, third paragraph, of the Constitution – based on the assumption that the supervisory magistrate "did not have control over the execution of the measure," so that "his scrutiny would result in being of form and not of substance."

It would be, in fact, the referring judge himself to reveal such groundlessness, where he states – with reasoning considered by the President of the Council of Ministers merely circular – the irrelevance of the circumstance that the supervisory magistrate, like the criminal enforcement judge, interacts with the external penal execution office or with the police forces, because "even such interaction would have the genetic defect of being merely formal and referred to an executive relationship that for every other aspect is regulated by another judge." Both judges have, in truth, the same cognitive tools – observes the President of the Council of Ministers – to ascertain the correct execution of community service, which is why it is not understood why the interaction with the competent external institutional subjects to control the execution of the sentence would be, for the supervisory magistrate, merely formal. In this perspective, therefore, "obscure, as well as hypothetical," would reveal itself the statement of the referring judge according to which "the decision of the supervisory magistrate" risks being "incapable of capturing, for example the minor nature of certain violations, thus prejudicing the rehabilitative path upon which even the prisoner sentenced to a substitute penalty is embarked."

From what precedes, in conclusion, it would emerge that the complaints of the referring judge would relate solely to the appropriateness of the legislative choice, resulting it unchallengeable where – as in the case at hand – "it is devoid of manifest arbitrariness and/or unreasonableness," remaining irrelevant, then, "possible application problems that could never give rise to a pronouncement of constitutionality, given that it is up to the criminal judge and the United Sections of the Court of Cassation to resolve such application problems, with a correct (constitutionally compliant) interpretation of the norms that come into examination."

Considerations of Law

3.– The Supervisory Magistrate of Naples, called upon to rule on an application for early release, pursuant to Article 54 of the Penitentiary Law, filed by a prisoner sentenced to two years and ten months of imprisonment, replaced, pursuant to Articles 20-bis of the Criminal Code and 56-bis of Law no. 689 of 1981, with the measure of community service, doubts, with the order indicated in the epigraph, in reference to Articles 3 and 27, third paragraph, of the Constitution, the constitutional legitimacy of Articles 69 and 69-bis of the Penitentiary Law, in the interpretation that legitimacy jurisprudence has given of such norms, according to which the jurisdiction to decide on said application belongs to the supervisory magistrate and not to the criminal enforcement judge.

3.1.– The referring judge highlights, in fact, that, according to the Court of Cassation, it would have been a "more linear" legislative choice to attribute jurisdiction to the same judicial body that imposed the substitute sentence, since it, in the enforcement phase, "remains competent to decide on all matters relating to the performance of community service, maintaining contact for this purpose with the external penal execution office." There exists, in fact, a "functional jurisdiction of the judge who issued the judgment regarding all matters related to its execution, until the declaration attesting to its definitive completion and declaring all penal effects extinguished." Jurisdiction that includes – in the case, precisely, in which the penalty of substitute community service has been imposed – the decision regarding the modification, upon application by the prisoner, of the requirements imposed by the judgment applying the substitute sentence, according to what was provided by Article 64, second paragraph, of Law no. 689 of 1981. Likewise, it is always the enforcement judge who provides – with reference, again, to the substitute penalty de qua – for the revocation for the failure to execute the same, or for serious or repeated violation of the obligations and requirements inherent to it, based on what is established by Article 66 of the same Law no. 689 of 1981.

On such grounds, therefore, the referring judge hypothesizes the violation of Article 3 of the Constitution, as it would be "manifestly unreasonable" a regulatory setup – like the one emerging from living law – that provides for the intervention of the supervisory magistrate "only at the reward moment of early release," resulting, for all the rest, the substitute community service "withdrawn from his supervision," thus placing the jurisdiction to provide on the application pursuant to Article 54 of the Penitentiary Law as an "eccentric element compared to the remaining regulatory system."

Also denounced is the violation of Article 27, third paragraph, of the Constitution, given that the rehabilitative finalism of the sentence would be compromised, since the decision of the supervisory magistrate "risks being merely formal and therefore incapable of capturing, for example, the minor nature of certain violations, thus prejudicing the rehabilitative path upon which even the prisoner sentenced to a substitute penalty is embarked." Although, in fact, even such judge may interact with the external penal execution office or with the police forces, such interaction "would have the genetic defect of being merely formal and referred to an executive relationship that for every other aspect is regulated by another judge."

4.– The President of the Council of Ministers intervened in the proceedings to ask that the questions be declared manifestly groundless, noting, preliminarily, how the complaints raised would result "more relevant to the merits and the appropriateness of the legislative choice" than to the constitutional legitimacy of the jurisprudential interpretation that identifies the supervisory magistrate as the body competent to rule on early release even in the case in which the substitute penalty imposed is that of community service.

In particular, it is excluded to be in contrast with Article 3 of the Constitution the provision of differentiated jurisdictions (regarding the revocation or modification of the substitute penalty, on one hand, and early release, on the other), since community service, among the substitute sanctions for short custodial sentences, "is the mildest," being "completely devoid of a custodial component," so it would be entirely "rational that the jurisdiction over the execution of the substitute sentence resides with the criminal enforcement judge who ordered it," as it must "be executed, precisely, outside the penitentiary circuit itself." Conversely, "the granting of early release can only always and in any case be the exclusive jurisdiction of the supervisory judge who, according to the law, is the (only) judge functionally competent for his/her specialization in the delicate matter."

As for the alleged violation of Article 27, third paragraph, of the Constitution, the complaint would appear argued – according to the intervener – in a "circular" (and obscure) way. It would not be given to understand, in fact, why the control entrusted to the supervisory magistrate – a judge, among other things, functionally competent regarding all applications for early release – would result in being "merely formal," since he disposes of the same cognitive tools, belonging to the enforcement judge, to ascertain the correct execution of community service.

5.– Thus summarized the terms of the questions submitted to the examination of this Court, it appears useful – before proceeding to its scrutiny – to reconstruct the regulatory and jurisprudential framework of reference, also in reason of the fact that the present incident of constitutional legitimacy invests, rather than an express regulatory provision, the interpretive landing to which the Court of Cassation has arrived in identifying the competent judge to provide on the application for early release, relative to the penalty of substitute community service.

5.1.– In this regard, therefore, it must be highlighted that the substitute penalty in question is contemplated by Article 20-bis of the Criminal Code, introduced by Article 1, paragraph 1, letter a), of Legislative Decree no. 150 of 2022. This norm – in providing for substitute community service together with the substitute pecuniary penalty, substitute semi-liberty, and substitute home detention – has "intended to configure substitute penalties as authentic penalties, destined as such to enrich the sanctioning tools available to the cognition judge to realize the functions proper to the penal sanction" (judgment of this Court no. 139 of 2025). They, therefore, "imposable by the cognition judge contextually to the conviction in place of the prison sentence, in function of the rehabilitation of the prisoner, as well as objectives of general and special prevention," are characterized by the "greater suitability for the realization of the rehabilitative end compared to detention of reduced duration (of which the desocializing effects are well known)," suitability that, together with "the aptitude to prevent the danger of commission of other crimes," constitutes one of the two "general criteria that orient the discretionary power of the judge in the application and in the choice of substitute penalties (Article 58, first paragraph, of Law no. 689 of 1981)" (judgment no. 176 of 2024). Their discipline is provided for in Chapter III of Law no. 689 of 1981, as amended by Legislative Decree no. 150 of 2022.

5.2.– This premise in general terms, in relation to the penalty of substitute community service (which the cognition judge can order, in pronouncing a conviction judgment, or even in case of application of the sentence upon request of the parties, pursuant to Article 444 of the Code of Criminal Procedure, when he deems it necessary to determine the duration of the custodial sentence within the limit of three years: see Article 53 of Law no. 689 of 1981), the problem has arisen of establishing whether its non-custodial nature prevents the application of the institution of early release, pursuant to Article 54 of the Penitentiary Law. Indeed, the norm just cited, at paragraph 1, establishes that to the prisoner "sentenced to a custodial sentence," who has given proof of participation in rehabilitative work, is granted, as recognition of such participation and for the purposes of his most effective reintegration into society, a deduction of forty-five days for every single semester of sentence served. The textual reference to the "custodial sentence" has generated the doubt relative to the effective possibility of enjoying early release even in relation to this specific substitute penalty.

The intentio legis would seem, however, to be clear, having regard to what emerges from the explanatory report to Legislative Decree no. 150 of 2022 (published in the extraordinary supplement no. 5 of the Official Gazette of October 19, 2022), cited also by the Attorney General's Office, where it is expressly stated that this is the will of the legislator, as made evident by the "updated" text of Article 76 of Law no. 689 of 1981, as resulting at the outcome of the amendments made by Article 71, paragraph 1, letters bb), of Legislative Decree no. 150 of 2022, which has sanctioned the applicability to substitute penalties, as compatible, among other norms, of Article 47, paragraph 12-bis, of the Penitentiary Law. One reads, in fact, in the aforementioned explanatory report that, although "this provision refers to probation at the social service" (that is, to an alternative measure to detention), "it, expressly presupposing the observation of the prisoner in external penal execution, and not in prison, represents a model of discipline adaptable (besides to the other alternative measures) to substitute penalties." To further "confirmation of the appropriateness of the choice to expressly admit early release for substitute penalties for short custodial sentences," still according to what is stated in the aforementioned report, would deposit the circumstance that "the opposite choice would have negative effects on the deflating potentials of the sentences themselves, also in relation to the alternative rites and to the provision of the unappealability of convictions to the LPU," since for the person sentenced to a custodial sentence "the access to alternative measures to detention, for which early release is admitted, would result as a more favorable solution." The potentially deflating finality of criminal trials, connected to the introduction into our legal system of substitute penalties, is emphasized also by the jurisprudence of this Court, according to which precisely "the prospect of obtaining the application of substitute penalties for prison, also by effect of the sentence discounts connected to the choice of alternative rites," could reveal itself as a factor of incentivization of the latter (judgments no. 176 and no. 84 of 2024).

5.3.– The explicitation of the intentio legis has not, however, prevented the arising of doubts on the part of the judicial authority about the meaning to attribute to the "compatibility clause" present in the cited Article 76 of Law no. 689 of 1981, which extends, yes, to substitute penalties certain norms dictated for alternative measures to detention (and among them, as seen, paragraph 12-bis of Article 47 of the Penitentiary Law), but only "as compatible."

Such question – as well as the consequential one (where the first, of course, had received a positive answer), relative to the identification of the judge possibly competent to provide on early release – has, therefore, engaged repeatedly the legitimacy jurisprudence.

The Court of Cassation, in what constitutes the lead pronouncement of the address on the matter (it is the already cited Cass., no. 10302 of 2025), had been called – upon challenge by the Public Prosecutor at the Ordinary Court of Turin, of an order with which the enforcement judge of the local Court had ordered the early release of a prisoner already touched in the cognition phase by the penalty of substitute community service – to rule on both such questions.

5.3.1.– In addressing preliminarily – deeming it "logically priority" – the theme of compatibility, even under the literal wording of the updated Article 76 of Law no. 689 of 1981 (since here it lurked, according to the Court of Cassation, "the quaestio iuris, potentially harbinger of different interpretive options"), between the substitute penalty of community service and the institution of conditional release, the cited judgment has operated, first of all, a reconstruction of historical character.

It has, therefore, reminded that the provision of Article 54 of the Penitentiary Law has been long interpreted in the sense that the reward measure of early release presupposed, as a necessary condition for its applicability, "that an status detentionis was in progress in execution of sentence, without which would not have been possible the observation of the personality, a treatment program, the participation in the program, nor the pursuit of the objective of reintegration into society; it was believed, in the end, that the possible cessation of the penal execution or the condition of freedom of the prisoner, already inserted in the social context, prevented the realization of the reward finality."

"Such restrictive interpretation" (which the legitimacy arrest, illustrated here, reminds to have been advocated, among others, also by the Court of Cassation, United Criminal Sections, judgments June 18–July 11, 1991, no. 15 and no. 16), however, over time, "has undergone an evolution that has allowed to expand the applicative scope of the institution." It was therefore considered "admissible the request for early release advanced by a subject who is in a state of freedom when such state is achieved not to the completed integral execution of the sentence but to the intervention of a provision of suspension of the execution, succeeded to a period of detention with regard to which one can evaluate the possible participation of the prisoner to the work of rehabilitation" (is recalled Court of Cassation, First Criminal Section, judgment March 1–April 20, 2000, no. 1490), reaffirming, then, that "for the admissibility of the application it is not necessary that the execution of the custodial sentence is in progress, since in all cases in which the prisoner is subject to alternative forms of execution must be considered satisfied the condition of the pendency of the executive relationship contained in Article 54," as, for example, in the case in which the application is "been presented by a prisoner who after a period of precautionary custody had to serve a residual period of imprisonment under the form of probation to the social service)» (is cited Court of Cassation, First Criminal Section, judgment July 6–August 1, 2001, no. 30302).

To the described jurisprudential evolution has then followed – it is emphasized always in the judgment of the Court of Cassation cited here – the intervention of the legislator, who, through the introduction into the text of Article 47 of the Penitentiary Law, of paragraph 12-bis, by the work of Article 3 of Law no. 277 of December 19, 2002 (Amendments to Law no. 354 of July 26, 1975, on early release), "has explicitly provided for the granting of the sentence reduction referred to in Article 54 to the person on probation to the social service who has given proof in the relative period of a 'concrete social recovery'."

On the basis, therefore, of such overall evolution, the Court of Cassation has believed to affirm, with the cited judgment no. 10302 of 2025, that "the custodial nature of the measure in progress is no longer a discriminator for the granting of the benefit, since, in order to benefit from early release, it is not required that the detention is in act and involves imprisonment inside a penitentiary institute, being rather demanded the non-exhaustion of the penal execution relationship in progress, upon whose temporal continuation the institution goes to affect in a favorable sense to the prisoner, anticipating its cessation." It has, therefore, recognized the compatibility between the substitute penalty of community service and early release, conclusion to corroborate which the Court of Cassation has highlighted, furthermore, "how the substitute community service is pivoted on work activities – performance of not less than six hours and not more than fifteen hours weekly, increasable upon request of the prisoner – that have a marked rehabilitative and resocializing aptitude" (Article 56-bis, paragraphs 1 and 2, of Law no. 689 of 1981), entailing "requirements, common also to semi-liberty and home detention" (pursuant to Article 56-ter of the same law). In the same perspective, it has been especially emphasized that community service has "finalities of social reintegration, since the UEPE must report to the judge not only on the effective performance of the work by the prisoner, but also 'on the conduct and the path of social reintegration'" (pursuant to Article 63, third paragraph, of Law no. 689 of 1981). Finally, it has been highlighted that the often-cited explanatory report to Legislative Decree no. 150 of 2022, affirms that also "the substitute LPU, like substitute semi-liberty and substitute home detention, is conceived as a program-sentence," so its role, "in the system of new substitute penalties, is comparable to that covered by probation to the social service among alternative measures to detention, in relation to semi-liberty and home detention." Consequently, precisely the parallelism between the two institutions, "in front of regulatory indices" (Articles 57, first paragraph, and 76 of Law no. 689 of 1981; Articles 47, paragraph 12-bis, and 54 of the Penitentiary Law) "that depose for the applicability of early release to those sentenced to the substitute penalty of community service, comforts in not enucleating any index of systematic incompatibility between the cited institutions."

5.3.2.– As for the further question – that is, the one that specifically interests here – of the identification of the competent judge to provide on the application for early release, the Court of Cassation, with the cited pronouncement no. 10302 of 2025, has affirmed that paragraph 4 of Article 69-bis of the Penitentiary Law – as resulting at the outcome of the amendments made by Article 5, paragraph 3, of Decree-Law no. 92 of July 4, 2024 (Urgent measures on penitentiary, civil and criminal justice and staff of the Ministry of Justice), converted, with modifications, into Law no. 112 of August 8, 2024 – assigns to the supervisory magistrate "the functional jurisdiction to decide on the granting of early release," so that, possible "systemic needs that would have advised a concentration of the jurisdiction, also in relation to the granting of early release, in the head of the Enforcement Judge, can only recede before a textual and unequivocal data, not superable by interpretive way."

On such bases, the subsequent legitimacy jurisprudence – through numerous pronouncements (Court of Cassation, First Criminal Section, judgments no. 18995 and no. 22662 of 2025, already cited, as well as January 16–February 16, 2026, no. 6218, January 15–23, 2026, no. 2918, December 2, 2025–January 13, 2026, no. 1319, December 10–29, 2025, no. 41563, October 7–November 19, 2025, no. 37693 and no. 37694, October 17–23, 2025, no. 34652 and no. 34653, June 4–September 12, 2025, no. 30637) – has reaffirmed said functional jurisdiction of the supervisory magistrate, without, however, failing to hide, again, that reasons of appropriateness would have advised a different choice, as the referring judge reminds in the referral order that gave rise to the present judgment.

6.– It is, therefore, in such context that the questions of constitutional legitimacy brought to the examination of this Court by the Supervisory Magistrate of Naples are inserted.

6.1.– In scrutinizing them it must, first of all, be observed that they are admissible, recurring the conditions so that it can be recognized, in the case, a true and proper "living law" – as such challengeable before this Court – in relation to the interpretation of Articles 69 and 69-bis of the Penitentiary Law.

Again recently, in fact, this Court has reaffirmed that, to have "living law," it is sufficient "a stable hermeneutic landing of legitimacy jurisprudence," recognized "not only in the presence of an interpretation provided by the United Sections of the Court of Cassation," but, more generally, "in the face of an interpretation provided by the legitimacy jurisprudence reiterated and consequently stable" (recently, judgment no. 162 of 2025), as, precisely, in the case that occupies here.

Existing, therefore, such occurrence, the court a quo – remaining the freedom not to conform to such stable hermeneutic landing – "has, in the alternative, the faculty to assume the challenged interpretation in terms of living law and to request its control of compatibility with the constitutional parameters, on such presupposition," and this "without being able to be accused of not having followed a different interpretation, more adherent to the parameters themselves," as "the norm lives by now in the legal system in a way so rooted that it is difficult to hypothesize a change of the system without the intervention of the legislator or of this Court" (thus, lately, judgment no. 73 of 2024).

6.2.– Although admissible, the questions raised are not, however, founded.

6.2.1.– It is necessary, in fact, to highlight that the norms on the jurisdiction of judicial bodies (to such category being reducible, in particular, Article 69-bis, paragraph 4, of the Penitentiary Law, in the interpretation constituting, as said, "living law"), like those that shape procedural institutions, in whose ambit they enter, are expression of broad legislative discretion (lately, judgment no. 205 of 2025; in the same sense, among many, judgments no. 237 of 2007 and no. 206 of 2004), so that their constitutional illegitimacy can be declared only in the presence of choices that result manifestly unreasonable.

Thus framed the terms of the question, as well as reaffirmed, precisely, the discretionary character of the different options that the legislator, also with reference to the theme that detects here, could have accomplished, it must be observed that it does not result patently unreasonable the regulatory provision – as reconstructed by the living law – that attributes the jurisdiction to provide on early release, also in relation to the penalty of substitute community service, to the supervisory magistrate, if compared to that of reserving, instead, to the enforcement judge the decision on the modification and revocation of the same (Articles 64, paragraph 2, and 66 of Law no. 689 of 1981).

In this regard, it must be noted that such "fractioned" distribution of jurisdictions – as has observed, in a shareable way, the President of the Council of Ministers – does not appear irrational, where one considers that the substitute penalty de qua possesses (unlike substitute semi-liberty and substitute home detention) a non-custodial nature, which justifies, for the modification or revocation of the same, the intervention not of the supervisory magistrate, but of the enforcement judge, this taking place with entirely extramural methods. Likewise, it does not appear unreasonable the intervention of the supervisory magistrate when one must provide, instead, regarding early release, being such institution the object of a functional jurisdiction of the same, according to what emerges from the jurisprudence (also) of this Court.

6.2.2.– It, in fact, in highlighting how the link that unites the rehabilitative finalism of the sentence to early release makes of this a "key institution in the pursuit of such finality, constitutionally necessary" (thus judgment no. 201 of 2025, but see also judgment no. 17 of 2021, which remarks "the centrality of the benefit in question along the whole path of rehabilitation of the prisoners," as well as judgment no. 149 of 2018, which identifies in early release – as already judgment no. 186 of 1995 – "an essential tile of the current penitentiary system" and, more generally, "of the philosophy of resocialization that lies at the base of it; philosophy that, in its turn, constitutes direct implementation of the constitutional precept of which to Article 27, third paragraph, of the Constitution"), underlines that "the evaluation regarding the existence of the presuppositions of early release belongs, based on the law, to the only supervisory magistrate: who, certainly, will have to consider with attention the judgment communicated to him by the penitentiary administration, in the ambit however of an evaluation that he will have to accomplish in autonomy, based on parameters also ulterior respect to the periodic reports of the penitentiary administration" (thus, in particular, point 6.7.2. of the Considerations in law of the already cited judgment no. 201 of 2025).

6.2.3.– Now, these considerations – besides confirming the non-unreasonableness of the identification in the supervisory magistrate of the judge competent to rule, also in relation to the penalty of substitute community service, on early release (in that the "only" empowered to accomplish the "evaluation regarding the existence of the presuppositions" for the granting of the benefit) – exclude the foundation also of the complaint of violation of Article 27, third paragraph, of the Constitution.

Indeed, precisely the centrality, recognized by the jurisprudence of this Court (the reference is, again, to judgment no. 201 of 2025), to the "autonomous" evaluation entrusted to the supervisory magistrate, since to be accomplished "based on parameters also ulterior respect to the periodic reports of the penitentiary administration," allows to resize the assumption of the court a quo – moreover, entirely apodictic, in its being expression, as well observes the state defense, of a reasoning purely "circular" – according to which the rehabilitative finalism of the sentence, that early release tends to ensure, would be compromised by the "merely formal" character of the interaction of the supervisory magistrate with the external penal execution office and with the police forces. If, in fact, the autonomous appreciation on the presuppositions of early release on the part of the supervisory magistrate – and, especially, of the circumstance that the prisoner has "given proof of participation in the work of rehabilitation," pursuant to paragraph 1 of Article 54 of the Penitentiary Law – constitutes the "fulcrum" of the institution, it is then evident that the theme of interaction with other subjects tends to remain, so to speak, only on the background, not being able its (pretended) exclusively formal character integrate violation of Article 27, third paragraph, of the Constitution.

Corroborate, finally, the result of the non-foundedness of the complaint in examination the following further considerations, relative – again – to the ratio of early release.

Indeed, this Court, already in the past, has highlighted that "the reduction of sentence" – consequent to the operativity of the institution pursuant to Article 54 of the Penitentiary Law – "does not have a gratuitous pietistic or paternalistic character, but represents a prize to the effort that the prisoner goes doing to adapt himself to the work of the Institution that, through rehabilitation, starts him to social reintegration" (judgment no. 352 of 1991), "effort" on which it is called to watch, institutionally, the supervisory magistrate. The same, furthermore, in granting the aforementioned "allowance" for every semester of sentence served, does not limit himself to make application of a mere "parameter of calculation," but, to the contrary, watches over what "substantiates the strong point of the rehabilitative instrument, that reconnects itself to the experiences and to the teachings of criminological therapy," based on which "the symptomatic aspect of delinquent behavior is given by the incapacity of the subject to solve the problems of his life through means and by ways socially acceptable: and this especially because he does not have aptitude to bear sacrifices and fatigues in the prospect of a future good" (judgment no. 276 of 1990).

Now, if the reduction of sentence pursuant to Article 54 of the Penitentiary Law is not the result, purely mechanistic, of an arithmetic operation, but integrates, instead, the outcome of an evaluation that has, at its center, the appreciation of the "volitional energies of the prisoner to the prospect of a prize to be gathered in a short stretch of time, provided that in that time he succeeds to give adhesion to the rehabilitative action" (thus, again, the just cited judgment no. 276 of 1990), results confirmed the non-incompatibility with Article 27, third paragraph, of the Constitution – in spite of the doubts advanced by the referring judge – of the jurisdiction of the supervisory magistrate, since, also in the case in which the penalty imposed is that of substitute community service, it is such judicial organ to place itself, in a general way, as dominus of the verification of the path of resocialization of the prisoner.

For the indicated reasons the questions of constitutional legitimacy of Articles 69 and 69-bis of the Penitentiary Law are not founded.

for these reasons

THE CONSTITUTIONAL COURT

declares the questions of constitutional legitimacy of Articles 69 and 69-bis of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the execution of measures restricting or limiting liberty), raised, in reference to Articles 3 and 27, third paragraph, of the Constitution, by the Supervisory Magistrate of Naples, with the order indicated in the epigraph, to be not founded.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 20, 2026.

Signed:

Giovanni AMOROSO, President

Roberto Nicola CASSINELLI, Redactor

Roberto MILANA, Director of the Chancellery

Deposited in the Chancellery on June 25, 2026

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