JUDGMENT NO. 118
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the proceedings regarding the constitutionality of Article 649 of the Code of Criminal Procedure and Article 635, second paragraph, number 1), of the Criminal Code, initiated by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, in the criminal proceedings against A. M., by referral order of July 23, 2025, registered as no. 185 of the 2025 register of orders and published in the Official Gazette of the Republic, no. 41, special series, of the year 2025.
Having seen the act of intervention of the President of the Council of Ministers;
Having heard, in the chambers on May 18, 2026, the Reporting Judge Francesco Viganò;
Having deliberated in the chambers on May 18, 2026.
Statement of Facts
1.– By order dated July 23, 2025, registered as no. 185 of the 2025 register of orders, the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy regarding Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 4 of Protocol no. 7 to the European Convention on Human Rights (ECHR), concerning Article 649 of the Code of Criminal Procedure, insofar as it does not provide that the judge shall issue a judgment of acquittal or dismissal of proceedings against a defendant charged with the offense under Article 635, second paragraph, number 1), of the Criminal Code, when the same individual, in relation to the same act, has already been subjected to disciplinary proceedings, concluded definitively, for the infraction under Article 77, paragraph 1, number 13), of Presidential Decree no. 230 of June 30, 2000 (Regulation laying down rules on the penitentiary system and on measures depriving and limiting liberty; hereinafter: Penitentiary Regulation), for which the disciplinary sanction of exclusion from common activities under Article 39, first paragraph, number 5), of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and on the execution of measures depriving and limiting liberty) was applied.
Subordinately, the referring court raised questions of constitutional legitimacy, regarding Articles 3, 13, and 27, first and third paragraphs, of the Constitution, concerning Article 635, second paragraph, number 1), of the Criminal Code, insofar as it does not allow the judge to impose a penalty below the statutory minimum in cases where the defendant has already been subjected to the disciplinary sanction of exclusion from common activities under Article 39, first paragraph, number 5), of Law no. 354 of 1975 for the same act.
1.1.– Regarding the facts, the court a quo states that it must adjudicate, through a summary judgment, the charges of criminal damage followed by risk of fire (Art. 424, first paragraph, Criminal Code), criminal damage (Art. 635, first and second paragraphs, number 1, Criminal Code), and resisting a public official (Art. 337, Criminal Code): all offenses attributed to a prisoner serving a sentence who, on September 23, 2021, allegedly set fire to personal clothing, damaged a television screen in a detention cell, smashed a table, damaged a ceiling light in another cell to which he had been temporarily transferred, and threatened prison police officers while they were performing an act of their office in an attempt to calm him. For these actions, the prisoner was placed in precautionary disciplinary isolation that same day, where he remained until the following October 1, 2021. Subsequently, he was subjected to disciplinary judgment and definitively sanctioned with eight days of exclusion from common activities for violating Article 77, paragraph 1, numbers 13), 14), 15), and 21) of the Penitentiary Regulation (the latter sanction was entirely served on a precautionary basis).
1.2.– Having excluded the existence of the offenses under Articles 424 and 337 of the Criminal Code, the referring court anticipates a finding of criminal liability only for the offense under Article 635 of the Criminal Code, concerning the damage to property of the prison administration (the table and ceiling light of the detention cell). It notes, however, that for these same acts, the defendant has already been subjected to a punitive disciplinary sanction (exclusion from common activities for eight days, imposed by the disciplinary council), which would cumulate with the criminal penalty that the court would otherwise have to impose for the offense under Article 635, second paragraph, number 1), of the Criminal Code.
Hence the relevance of the questions raised, because Article 649 of the Code of Criminal Procedure, which provides for the prohibition of procedural bis in idem, would apply "exclusively to the hypothesis of a double formally criminal proceeding, without preventing a second formally criminal proceeding from following an extra-penal punitive proceeding" (and noting that this Court intervened, with judgment no. 149 of 2022, limited to a single hypothesis of a "dual track" system in the matter of copyright).
Furthermore, substantive criminal law (specifically, Article 635 of the Criminal Code) would not allow "taking due account, in sentencing, of the intervention of the previous punitive disciplinary sanction, in order to avoid a violation of the principle of proportionality of punitive sanctions."
1.3.– Regarding the non-manifest groundlessness, the primary questions are based on the assumption that the sanction of exclusion from common activities for disciplinary reasons under Article 39, first paragraph, number 5), of the Penitentiary Law (applied to the defendant in the main proceedings) is substantially penal in nature and that the conditions to which jurisprudential, conventional, and national development subordinates the possibility of a dual sanctioning track do not exist.
1.4.– To justify this assumption, the court a quo cites the well-known conventional case law on the "Engel criteria”, according to which "the satisfaction of even one of the three criteria is sufficient to qualify a sanction as criminal for the purposes of the European Convention." These criteria are "constituted essentially by 1) the qualification under domestic law, 2) the nature of the offense, 3) the severity of the sanction." Facing these three "macro-criteria," conventional and national case law have further derived multiple symptomatic indices from which to deduce "the substantially criminal nature of a formally extra-penal sanction." Among these: a) the general nature of the interests harmed by the offense; b) the punitive function of the offense and the relative sanction; c) the afflictive efficacy of the sanction; d) the formal qualification assigned by the national legal system; e) the link between the sanction and a criminal offense; f) the deterrent or afflictive purpose of the sanction; g) the venue where the sanction is imposed (referencing European Court of Human Rights, Grand Chamber, judgment of June 8, 1976, Engel and Others v. the Netherlands; subsequently, Grand Chamber, judgment of November 15, 2016, A and B v. Norway; judgment of May 20, 2014, Nykänen v. Finland, as well as the Court of Justice of the European Union, Grand Chamber, judgment of March 20, 2018, Case C-524/15, Menci).
1.5.– Regarding the nature of the offense, the referring court highlights that the structure of the disciplinary penitentiary offense replicates the "morphology of a criminal offense," sharing its punishability as an attempt (Art. 77, paragraph 2, Penitentiary Regulation), the possibility of aggravation for recidivism (paragraph 3 of the same article), suspension of the execution of sanctions (Art. 80, Penitentiary Regulation), and the application of precautionary measures, with possible deduction of the so-called "pre-served" time in the event of the imposition of a final sanction (Art. 78, paragraphs 1 and 4, Penitentiary Regulation). Echoing this similar structure is a "unitary function of the disciplinary sanctions under scrutiny and criminal sanctions," with the former – like the latter – being required to perform "functions of general prevention, special prevention, and retribution." Both measures, finally, pursuant to Article 38 of the Penitentiary Law, are subject to the principles of legality and specificity, "indispensable and characteristic traits" of punitive offenses, and to the same criteria of commensuration, centered "not only on the nature and severity of the act, but also on the behavior and personal conditions of the author of the offense" (which, moreover, would "further confirm the purpose, including special-preventive – in addition to retributive and general-preventive – of the sanction").
1.6.– Furthermore, it is the national law itself that qualifies the measure of disciplinary isolation as a "sanction" and contemplates "an analogous sanction of a strictly penal nature." Such is the daytime isolation under Article 72 of the Criminal Code, provided as an "additional sanction," an aggravation of life imprisonment, "imposed for the most serious hypotheses provided for by the criminal justice system." While not listed among the principal penalties and not affecting the quantum of the sentence, this measure holds the "legal nature of a criminal sanction," as affirmed by the jurisprudence of legitimacy (citing Court of Cassation, First Criminal Section, judgment of February 5-26, 2014, no. 9300), by reason of the drastic impact it has "on the quality and depth" of the limitation of personal liberty.
1.7.– Contributing to the punitive nature of isolation for disciplinary reasons is, moreover, its afflictiveness, evidenced by multiple indices.
1.7.1.– Deliberated by the disciplinary council (Art. 40, second paragraph, Penitentiary Law), the measure in question – implying continuous isolation during its execution, with the preclusion for the prisoner to communicate with peers (Art. 73, paragraph 3, Penitentiary Regulation) – would be the most severe among all disciplinary sanctions contemplated by the penitentiary system (Art. 39, first paragraph, number 5, Penitentiary Law). It would entail a derogation, possible only in strictly defined cases, from the general rule of admission of prisoners to common life, which is "a central aspect of penitentiary treatment in light of the resocialization function to which the sentence must tend," as denoted by the various provisions of the penitentiary system regulating the sharing of spaces and the common exercise of activities during the period of detention.
The Court of Cassation has also noted that "the isolation of the prisoner from the rest of the prison population must be understood as potentially not included in the ordinary penitentiary treatment, it being understood that the general rule is that of the admission of the convict to common life so as to allow and foster their resocialization process and recovery to the social context pursuant to Article 27, third paragraph, of the Constitution" (again citing Cass., no. 9300 of 2014).
1.7.2.– The disciplinary measure would have the same afflictiveness inherent in the penalty of daytime isolation under Article 72 of the Criminal Code and would significantly impact "personal liberty or in any case the freedom of communication," with two aspects coming into specific relief: the "heavy compression of the freedom of communication," imposed as a method of execution of the disciplinary sanction by Article 73, paragraph 3, Penitentiary Regulation, normally foreign to the restriction of personal liberty resulting from the execution of the custodial sentence and "the normal rules of community life"; and the "aptitude of the sanction to cause suffering to the fundamental prerogatives of the person," due to its possible repercussions on the prisoner's psychophysical well-being, so much so that the measure is surrounded by particular cautions, such as the provision that it cannot be executed "without the written certification, issued by the health officer, attesting that the subject can withstand it" and the subjection of the latter "to constant health monitoring" (Art. 39, second paragraph, Penitentiary Law).
1.7.3.– Further confirmation of the burden of isolation is drawn from the objective and subjective limitations and the guarantees imposed for the adoption of the measure by "specific supranational charters," such as the European Prison Rules, adopted on January 11, 2006, with recommendation R(2006)2-rev by the Committee of Ministers of the Council of Europe, and revised and amended by the same on July 1, 2020 (in particular rule 60.6.e) and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the so-called "Mandela Rules," in particular rules 44 and 45): although falling into so-called soft law, such international sources represent "a condensation of supranational elaboration on the subject of fundamental rights of prisoners [...] also employed by the Constitutional Court itself in order to detail and give substance to the inalienable prerogatives of incarcerated subjects" (referencing the judgments of this Court no. 10 of 2024, no. 18 of 2022, and no. 143 of 2013).
1.7.4.– Finally, significant indices of the afflictive nature of the sanction would be its "stigmatizing scope," in the relations between the isolated prisoner and the remainder of the prison community, and its "indirect and secondary effects." Relevant in this regard is the incidence that the application of the disciplinary measure could have on the usability of the institutes of the reward permit and early release, "which, linking strictly to a positive evaluation of prison conduct [...] end up being heavily influenced by the imposition of the most severe disciplinary sanction (isolation)," thus sharpening "the suitability, even if only potential, of the measure in question to affect the good of personal liberty."
1.8.– Still on the considered substantially penal nature of disciplinary isolation, the referring court notes that, on this point, the jurisprudence of legitimacy is not univocal, as two opposing orientations clash: according to some rulings, the disciplinary measure – due to legal qualification, nature, and degree of severity – is not comparable to a criminal sanction (citing Court of Cassation, Sixth Criminal Section, judgments of November 12, 2019-January 16, 2020, no. 1645 and May 9-July 3, 2017, no. 31873); according to other judgments, instead, the disciplinary proceeding has a sanctioning nature and the "most severe prison disciplinary sanctions, namely those interfering with the prisoner's primary personal goods," have "a substantially penal nature" (citing Court of Cassation, First Criminal Section, judgments of March 31-May 31, 2021, no. 21348 and March 3-April 27, 2021, no. 15865; Second Criminal Section, judgment of December 15, 2016-February 24, 2017, no. 9184).
The court a quo declares its adherence to the second orientation, in support of which it also cites the most recent constitutional jurisprudence regarding the disciplinary liability of magistrates, according to which "disciplinary sanctions pertain in a broad sense to the sanctioning-punitive law, and for this very reason attract to themselves some of the guarantees that the Constitution and international human rights charters reserve for the penalty" (referencing the judgment of this Court no. 197 of 2018).
The extension to the sanction of disciplinary isolation of the "guarantees proper to criminal law" would be justified, in fact, by virtue of the already mentioned "Engel criteria”: 1) by the formal qualification as a sanction and, in the case of Art. 72 of the Criminal Code, as an "additional criminal sanction"; 2) by the substantially criminal nature of the infraction, deducible from multiple indices (the interest harmed, "clearly of a general nature, involving damage to public assets and those destined for public service, as well as assets instrumental to the life of the prison community"; the punitive purpose of the sanction, which would fulfill a dual function of "general prevention and special prevention"); 3) by the severity of the sanction, deducible from the circumstances already outlined above.
The punitive function of the sanction of disciplinary isolation, moreover, would not be excluded by the fact that it fulfills a "regulatory and organizational purpose of prison life," considered that, in a not dissimilar way, a regulatory and organizational purpose would also characterize criminal law, whose "primary purpose [...] is that of ensuring the monopolist of force social control in a coercive form."
Nor would the substantially penal nature of the sanction be eliminated by its applicability "only within a restricted circle of associates" (that of prisoners), being that fact "also common to offenses that are also formally criminal" (such as those provided for by the military criminal code). The ECtHR itself has excluded that the limitedness of the addressees (only prisoners and not the totality of citizens) is a sufficient criterion to deny the substantially criminal nature of a sanction qualified formally as disciplinary (referencing Grand Chamber, judgment of October 9, 2003, Ezeh and Connors v. the United Kingdom, as well as judgment of June 28, 1984, Campbell and Fell v. the United Kingdom).
Finally, no parallelism would be traceable between disciplinary sanctions in the penitentiary ambit and those known in the field of labor law, where "a consensual relationship between private parties and not a relationship of subjection between the penitentiary administration and a person deprived of personal liberty" would come into play; the disciplinary sanction, moreover, would have the (peculiar) function of balancing "the opposing needs of the worker, who has an interest in keeping the job, and the employer, who has the right not to suffer helplessly the non-fulfillment of the worker."
1.9.– Having thus reduced the disciplinary offense in question and the relative sanction of isolation to the conventional notion of "criminal matter," the referring court explains the reasons for the "serious doubt regarding respect for the principle of constitutional and conventional rank of the prohibition of bis in idem referred to in Articles 24 and 111 of the Constitution and Article 4 of Additional Protocol no. 7 to the ECHR," retracing the "fundamental pronouncements of the Strasbourg Court and the Constitutional Court" that have intervened in the matter.
It notes, in particular, that "[w]ith the judgment [March 4, 2014] Grande Stevens [and Others v. Italy], the European Court stated that the substantially criminal nature, according to the Engel criteria, of sanctions formally extra-penal for the national system entails the violation of the ne bis in idem where the historical fact for which proceedings have been held is the same." With the already cited Nykänen v. Finland judgment, the ECtHR itself specified that "from the prohibition in question derive three distinct prerogatives of the individual: i. the right not to be exposed to the possibility of being prosecuted a second time; ii. the right not to be concretely prosecuted a second time; iii. the right not to be punished twice for the same fact." The Grand Chamber, with the already mentioned judgment rendered in the A and B v. Norway case, would then have "relativized the procedural principle of ne bis in idem, eliminating the non-derogable character of the prohibition by grafting onto it discretionary evaluations regarding the relations between [...] multiple proceedings that concern the same fact and giving relevance to profiles of substantive law linked to the proportionality of the sanction."
In light of the jurisprudence of the ECtHR and the subsequent elaboration of this Court (citing judgment no. 43 of 2018), the subjection of a defendant to a criminal trial for the same fact for which they have already been definitively subjected to a sanction formally extra-penal, but of a punitive nature according to the "Engel criteria”, would be subordinated to the following conditions: a) the existence of a "sufficiently close connection between the proceedings, by object and timing," which allows "also for adequate methods of coordination between the proceeding authorities in order to avoid duplications of investigation"; b) the "predictability of the double proceeding (and the double sanctioning response)"; c) the "pursuit of different and complementary goals by the two proceedings," which aim "in the abstract and concretely to sanction different profiles of the illicit conduct"; d) the "respect, considering the overall sanction, of the principle of proportionality."
1.9.1.– Regarding the idem factum, there would be a substantial overlap between the disciplinary offense provided for by Article 77, paragraph 1, number 13), Penitentiary Regulation and the offense under Article 635, second paragraph, number 1), Criminal Code, with both the conduct and its object coinciding. The two offenses (disciplinary and criminal) would therefore have as their object "the same fact according to conventional jurisprudence" (referencing ECtHR, Grand Chamber, judgment of February 10, 2009, Zolotoukhine v. Russia, paragraphs 79-84).
1.9.2.– In the second place, the legal system would not regulate the relations between disciplinary offense and criminal offense, between which there would be a "relationship of unilateral specialty." Lacking, in particular, any "connecting rule that allows avoiding double punishment." Of the "cited four elements to be evaluated in application of the so-called close connection test," only "the predictability of the double proceeding and the double sanction" would be respected.
Although Article 79 of the Penitentiary Regulation attributes to the disciplinary council the power to suspend the disciplinary proceeding pending a criminal proceeding, the exercise of such power would be "discretionary (and substantially unchallengeable)" and functional not to avoid double punishment, but likely to avoid the possible conflict of decisions.
The two proceedings (disciplinary and criminal) would be characterized, furthermore, by different forms and times of execution, with the disciplinary one marked "by the summary nature of the forms and the celerity," with consequent "marked effectiveness of the sanction and significant deterrent efficacy"; the criminal proceeding, instead, would "normally [...] initiate when the disciplinary proceeding has already concluded," potentially leading to the application of the penalty after a "considerable lapse of time" from the imposition of the disciplinary sanction. The lack of coordination between the two proceedings would produce, therefore, "highly dysfunctional results."
1.9.3.– Nor could it be believed that the two proceedings pursue different and complementary goals, as the penitentiary disciplinary sanction, despite having a regulatory and organizational purpose for the life of the prisoner community, "inevitably fulfills a punitive function (repressive and deterrent), which is also proper to the criminal sanction" (again referencing the ECtHR judgment Ezeh and Connors v. the United Kingdom).
1.9.4.– Lacking, finally, would be the requirement of the overall proportionality of the sanctioning response, considered that "The lack of procedural coordination and the absence of suitable offensiveness thresholds that select the most serious facts, deserving of criminal relevance, compared to the general disciplinary offense" would end "by generating an excessive and unjustified sanctionary compendium," further aggravated by the "particular effectiveness of the disciplinary isolation measure, swift and of immediate application" (on the value to be attributed to such elements, referencing the judgment of this Court no. 223 of 2018).
1.10.– In support, then, of the questions raised subsidiarily, regarding the denounced violation of the principle of proportionality of the sanctioning treatment, the referring court observes that the disciplinary offense is punished with the sanction of isolation for a maximum duration of fifteen days, while the offense under the second paragraph of Article 635 of the Criminal Code is punished with imprisonment from six months to three years. It highlights, moreover, that Article 72 of the Criminal Code (evoked as an "orientational reference parameter," and not as a "strict comparison parameter") provides for daytime isolation for a duration from two to eighteen months, in the case of concurrence of a crime that carries the penalty of life imprisonment with one or more crimes that carry temporary custodial sentences for a total time exceeding five years. Faced with such a penalty, the continuous isolation for a maximum duration of fifteen days would seem, therefore, to "already reward adequately the disvalue of the damage fact."
For this reason, in compliance with the principle of necessary proportionality of all punitive sanctions (also referencing to these ends the judgment of this Court no. 197 of 2018, as well as that of the Court of Cassation, United Civil Sections, July 5, 2017, no. 16601, on the subject of punitive damages), "it should be allowed to the judge – to whom is entrusted the task of measuring concretely the sanction to the fact – to apply a penalty lower than the statutory minimum provided for by Art. 635 of the Criminal Code when the same fact turns out to have already been punished on a disciplinary level," since respect for the principle of ne bis in idem leaves "unprejudiced the autonomous evaluation [...] regarding the proportionality of the penalty" (again referencing the judgment of this Court no. 149 of 2022).
In order to "adapt the sanction to the fact," finally, it would not be possible to use "the expedient of recognizing the generic mitigating circumstances under Article 62-bis of the Criminal Code," which would be founded on different assumptions and would not be an instrument physiologically suitable to correct a disproportionate statutory treatment (referencing the judgment of this Court no. 46 of 2024).
1.11.– Regarding the necessity of the intervention of this Court, the court a quo notes that, as the censured provision does not fall within the scope of application of European Union law, the judge would not be allowed to disapply the limit traced by the statutory minimum due to conflict with the Union principle of proportionality of sanctions. Nor would any interpretive adjustment be feasible, "[i]n light of the clear textual datum of Article 649 of the Code of Criminal Procedure and the principle of legality of penalties with regard to Article 635 of the Criminal Code," as well as the jurisprudence of the Court of Cassation, constant (albeit with different motivations) in denying the preclusion of ne bis in idem in the case of a defendant already sanctioned disciplinarily, for the same facts, with exclusion from common activities.
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, requesting that the questions be declared inadmissible or, in any case, manifestly unfounded.
2.1.– Having reconstructed the regulatory framework of reference, the State's defense highlights, first of all, how the disciplinary sanctions provided for by the penitentiary system "have a general preventive and special preventive goal, the primary function of which is that of protecting the internal order and security of the penal institutions."
Regarding the jurisprudence of legitimacy, the referring judge would have cited non-pertinent judgments and drawn "erroneous consequences" from other cited rulings, which would be uniform in holding that "the said sanctions operate on the level of the (temporary) method of execution of the penalty," excluding (albeit with different motivations) the violation of the principle of ne bis in idem "for the imposition, for an act corresponding to that object of criminal sanction, of a disciplinary sanction which, for legal qualification, nature, and degree of severity cannot be equated to that criminal one" (referencing the already cited Cass., no. 1645 of 2020).
2.2.– The questions raised subsidiarily would then be inadmissible for deficient motivation on the reasons for the conflict of the censured provision with the evoked constitutional parameters (referencing the judgments of this Court no. 236 of 2011 and no. 120 of 2015, as well as orders no. 26 of 2012, no. 321 of 2010 and no. 181 of 2009).
2.3.– Both the questions raised primarily and those proposed subsidiarily, however, would be manifestly unfounded, "in light of the regulation and the living law, as well as the jurisprudence of the ECtHR itself."
2.3.1.– First of all, the connotation of "criminal" sanctions would be lacking in prison disciplinary sanctions, both for their function and for their "low intensity." Also different would be the prerequisites for the application of the two types of sanctions ("the dangerousness of the inmate, deducible from the commission of facts even not constituting a criminal offense," in the case of the disciplinary sanction; the assessment of a fact that integrates a crime, "according to the typical rules of the criminal trial," in the case of the criminal sanction).
2.3.2.– In any case, the prerequisites indicated by the ECtHR judgment A and B v. Norway to proceed against the defendant in criminal proceedings would exist, despite the "already occurred imposition, for the same fact, of an administrative sanction (even if formally "criminal”)"; the two procedures, in fact, would result "complementary, as directed to the satisfaction of different social goals," and would determine "the imposition of an "integrated” criminal sanction, [...] predictable and, in practice, overall proportionate to the disvalue of the fact" (as already recognized in Cass., no. 9184 of 2017).
2.3.3.– Finally, regarding the subsidiary questions, "the disciplinary sanction of 7 days of suspension from common activities together with the minimum penalty of six months for the contested damage," which the judge intended to impose, could not be considered "manifestly disproportionate to the crime fact contested (the aggravated damage) under any aspect."
Considered in Law
3.– With the order in the heading, the Court of Florence, First Criminal Section, sitting as a single judge, raised questions of constitutional legitimacy, in reference to Articles 24, 111, and 117, first paragraph, of the Constitution, the latter in relation to Article 4 of Prot. no. 7 ECHR, concerning Article 649 of the Code of Criminal Procedure, insofar as it does not provide that the judge shall issue a judgment of acquittal or dismissal of proceedings against a defendant charged with the offense under Article 635, second paragraph, number 1), of the Criminal Code, when the same person, in relation to the same fact, has already been subjected to disciplinary proceedings, definitively concluded, for the infraction under Article 77, paragraph 1, number 13), Penitentiary Regulation, for which the disciplinary sanction of exclusion from common activities under Article 39, first paragraph, number 5), Penitentiary Law has already been applied.
The referring judge, called to judge with summary procedure on the criminal liability of a defendant for the crime of damage, in relation to facts for which he has already been subjected definitively to the disciplinary sanction of exclusion from common activities, believes:
a) that such disciplinary sanction has a punitive nature;
b) that, consequently, once the prisoner has already been subjected definitively to such sanction for an offense provided for by the penitentiary regulation (in the concrete case, for that provided for by Article 77, paragraph 1, number 13: "appropriation or damage of administration property"), the subjection of the same to a criminal proceeding having as its object the same material facts would pose a problem of respect for the constitutional and conventional guarantee of ne bis in idem;
c) that the conditions to which the jurisprudence of the ECtHR and of this Court itself subordinates the possibility of finding between the two proceedings a sufficiently close connection "by object and timing" such as to exclude the prohibition of bis in idem would not be met in this case;
d) that, therefore, a pronouncement of this Court would be necessary which, on the model of judgment no. 149 of 2022, declares the constitutional illegitimacy of Article 649 of the Code of Criminal Procedure, insofar as it does not expressly provide for a prohibition on holding a criminal trial against a defendant on the same material facts for which he has already been definitively applied the disciplinary sanction of exclusion from common activities.
Subsidiarily, the referring judge raised questions of constitutional legitimacy, in reference to Articles 3, 13, and 27, first and third paragraphs, of the Constitution, concerning Article 635, second paragraph, number 1), of the Criminal Code, insofar as it does not allow the judge to impose a penalty below the statutory minimum, in the case where the disciplinary sanction of exclusion from common activities under Article 39, first paragraph, number 5), of Law no. 354 of 1975 has already been applied to the defendant for the same fact.
The referring Court assumes that, should this Court not consider accepting the questions regarding Article 649 of the Code of Criminal Procedure, it should in any case declare constitutionally illegitimate the criminal provision that incriminates the hypothesis of damage contested in the main proceedings, insofar as it does not allow the judge to impose a penalty lower than the statutory minimum taking into account the previous disciplinary sanction already served, so as to avoid a violation of the principle of proportionality of the penalty.
4.– The State Attorney General formulates a single objection of inadmissibility, concerning the question proposed subsidiarily, assuming that the referring judge would not have sufficiently motivated the conflict of the censured provision with the evoked constitutional parameters (referencing the judgments of this Court no. 236 of 2011 and no. 120 of 2015).
The objection is not well-founded in reference to Articles 3 and 27, first and third paragraphs, of the Constitution. The referring judge believes, in fact, that the provision is contrary to the principle of proportionality of the penalty, which the constant jurisprudence of this Court derives, in fact, from the combined provisions of Articles 3 and 27, first and third paragraphs, of the Constitution (ex plurimis, judgment no. 34 of 2026, point 7).
It is, instead, well-founded, regarding Article 13 of the Constitution. This parameter could, indeed, result relevant with respect to a censure intended to denounce the conflict of a provision or a criminal discipline with the principle of "minimum necessary sacrifice" of personal liberty, which entails a "duty of punctual verification – on the part of the legislator, the judge of cognition and then the surveillance magistracy – of the effective necessity, respectively, of the commination, of the imposition and of the enduring execution of restrictive penalties of personal liberty, and in particular of detention in prison" (judgment no. 139 of 2025, point 9.1. of the Considered in Law, and further references therein; on the integration between reeducational purpose of the penalty and the principle of minimum necessary sacrifice of personal liberty, deducible from Article 13 of the Constitution, judgment no. 201 of 2025, point 6.6. of the Considered in Law). However, the referring judge carries out his censures solely with reference to the principle of proportionality of the penalty with respect to the severity of the crime, without even evoking the principle of "minimum necessary sacrifice" of personal liberty, and without in any case articulating any argumentation in this regard. This determines the inadmissibility of the relative question.
5.– On the merits, the questions proposed primarily are not well-founded.
5.1.– The extension of the right of every person not to be subjected to a second judgment for a fact for which they have already been acquitted or convicted definitively – a right that is immanent to the constitutional guarantees referred to in Articles 24 and 111 of the Constitution (judgments no. 149 of 2022, point 5.1. of the Considered in Law; no. 145 of 2020, point 5.2. of the Considered in Law; no. 200 of 2016, point 7 of the Considered in Law and numerous precedents cited therein), and which is expressly recognized on the international level by Article 4, paragraph 1, Prot. no. 7 ECHR as well as, at the union level, by Article 50 of the Charter of Fundamental Rights of the European Union – was lastly recapitulated by this Court in judgment no. 149 of 2022 (points 5.1. and following of the Considered in Law), to which the referring judge himself refers and to which it is convenient here to simply refer.
Suffice it to recall that the operation of the prohibition is not limited, as the judge a quo rightly observes, only to criminal judgments in a formal sense, but extends to all judgments which – while taking place before authorities other than the criminal judge and according to rules different from those valid for criminal trials – nevertheless also have a "punitive" nature, according to the substantive criteria developed primarily by the jurisprudence of the ECtHR starting from the well-known Engel and Others v. the Netherlands judgment. Such criteria were in substance received by the Court of Justice of the European Union (Grand Chamber, judgment of June 5, 2012, Case C-489/10, Bonda, paragraph 37, and – in the matter of ne bis in idem – Grand Chamber, judgments of March 20, 2018, Menci, paragraph 26; March 20, 2018, Case C-537/16, Garlsson Real Estate SA, paragraph 28; February 26, 2013, Case C-617/10, Åkerberg Fransson, paragraph 35), as well as by the jurisprudence of this Court itself, starting from at least judgment no. 196 of 2010, in order to identify the offenses, sanctions, and proceedings to which the constitutional, conventional, and union guarantees provided for the criminal matter must apply (more broadly, on the point, judgment no. 108 of 2026, point 5.1.2.).
5.2.– The referring judge, retracing in particular the criteria used by the ECtHR for the verification of the punitive nature of measures restricting fundamental rights, assumes that such nature should be ascribed to the disciplinary sanction of exclusion from common activities of the prisoner essentially for the following reasons:
– based on the so-called "first Engel criterion," which looks at the qualification of the measure in the national system, Italian criminal law would contemplate a peculiar type of penalty, the "daytime isolation" provided for by Article 72 of the Criminal Code, which would be homologous to the sanction of exclusion from common activities from the point of view of the regime applicable to the prisoner. From this, it should be deduced that also this latter sanction translates in fact into a real "penalty," more afflictive compared to "ordinary" imprisonment;
– regarding the nature of the infraction ("second Engel criterion"), the disciplinary offenses provided for by the penitentiary regulation (among which that under Article 77, paragraph 1, number 13, for which the defendant in the proceedings a quo has already been held responsible) would present the same morphology of criminal offenses, sharing their punishability as an attempt, the possibility of aggravation in case of recidivism, of suspension of the execution of the sanction, and of application on a precautionary basis, with consequent deduction – in the latter case – of the pre-served time at the moment of the imposition of the sanction; and would be, more generally, subject to the principles of specificity and individualization of the sanction taking into account the same indicators that are relevant for the purpose of commensuration of the penalty (Art. 38, second and third paragraphs, Penitentiary Law);
– regarding the "third Engel criterion," pertaining to the severity of the sanction, exclusion from common activities – entailing, pursuant to Article 73, paragraph 3, Penitentiary Regulation, the preclusion of communications with peers – would be the most severe among all disciplinary sanctions contemplated by the system, as implying a derogation from the general rule of common life of the prisoner, which, in turn, would constitute a central element of the treatment aimed at their resocialization. It, moreover, would be susceptible to impacting heavily on the psychophysical well-being of the prisoner, so much so that the isolation measure would be the object of special attention by the international recommendations on the treatment of prisoners punctually evoked by the referring judge (supra, 1.7.3.). Its application, finally, would present an evident stigmatizing scope for the prisoner, being able also to reverberate on the concrete usability of reward permits and early release, with consequent indirect incidence on the overall duration of effective detention.
5.3.– In this regard, it is however necessary preliminarily to observe that the judge a quo omits to confront funditus the jurisprudence of the ECtHR which specifically dealt with disciplinary sanctions imposed on incarcerated persons: jurisprudence from which it is deduced that such sanctions do not have, as a rule, a "punitive" nature for the purposes of the application of conventional guarantees.
If, in fact, the progenitor Engel judgment had recognized a punitive nature to certain types of disciplinary measures applicable to soldiers and entailing the deprivation of personal liberty up to a maximum of four or five months, other subsequent pronouncements have clarified that disciplinary sanctions applied to someone who is already incarcerated have a punitive nature when they determine an overall prolongation of the custodial sentence itself (ECtHR, judgment Campbell and Fell v. the United Kingdom, paragraph 72, in relation to disciplinary sanctions that had entailed, among other things, the extension of the prisoner's detention for a period of 570 days; Grand Chamber, judgment Ezeh and Connors v. the United Kingdom, paragraphs 128-129, in relation to a disciplinary sanction consisting directly in the imposition of "additional days" of detention). Such a punitive nature must instead be excluded when disciplinary sanctions limit themselves to affecting the methods of execution of the custodial sentence, making it more afflictive.
This latter principle was expressed, in particular, by a pronouncement of the ECtHR which held that the allegation of a violation of the right to ne bis in idem by a prisoner who had been subjected, among other things, to the disciplinary sanction of twenty-one days of isolation for having uttered insults and threats against the prison police, and who for the same facts had been subsequently subjected to criminal proceedings and sentenced to three years and ten months of imprisonment, was not well-founded. Recalling numerous decisions of the Commission with which appeals based on the alleged punitive nature of disciplinary sanctions inflicted on prisoners had been held inadmissible, the ECtHR observed that "the mere aggravation of the conditions of execution of one's custodial sentence through a measure such as isolation ("solitary confinement”) is not enough to bring the disciplinary proceeding in question within the sphere of the notion of "criminal matter” according to the meaning attributed to it by the Convention" (decision of November 6, 2012, Toth v. Croatia, paragraphs 37-38).
Similarly, a previous judgment had excluded – this time for the purposes of the applicability of Article 6, paragraph 1, ECHR in its "volet pénal" – the punitive nature of the disciplinary sanction of seven days of isolation, joined with the restriction for three months of the prisoner's contacts with the outside, for the disciplinary offense of introduction into prison of narcotic substances. This on the basis not only of the limited aggravation of the penitentiary regime thus realized, but also of the argument – later taken up and better valued by the cited Toth decision – according to which the disciplinary sanction had not entailed any extension of the overall duration of the sentence, unlike what had happened in the events examined by the Campbell and Fell and Ezeh and Connors judgments (judgment of November 8, 2007, Štitić v. Croatia, paragraphs 61-62).
In short: a disciplinary sanction inflicted on the prisoner – according to the current state of the jurisprudence of the ECtHR – constitutes a punitive sanction, with the effect of activating among other things the protection of the right to ne bis in idem, only insofar as it affects the extension of the penalty, not already on the mere intensity of the limitations of fundamental rights that the execution of the penalty entails.
5.4.– This Court – to which, even by force of Article 53 ECHR, it would not be precluded to interpret conventional guarantees, even in combined provisions with those recognized by the Italian Constitution and/or by European Union law, in a broader sense than what is already recognized by the Strasbourg jurisprudence (judgment no. 33 of 2025, point 7.1. of the Considered in Law; similarly, in the outcome, judgment no. 10 of 2024, point 4.4. of the Considered in Law) – does not consider here that it must deviate from the conclusion just formulated, at least with reference to disciplinary sanctions as currently provided for and regulated by the current Penitentiary Regulation and by Law no. 354 of 1975, which do not entail an extension of the duration of the penalty determined in the conviction sentence.
5.5.– The argument of the referring judge according to which the Italian criminal and/or penitentiary system would already attribute the nature of a penalty to the disciplinary sanction of exclusion from common activities does not persuade, first of all.
On the level of the "first Engel criterion," it is easy in fact to observe that the formal qualification of the measure is univocally that of "disciplinary sanction," as indicated by Article 39 Penitentiary Law: which in itself would be enough to refute the argument.
The referring judge insists, indeed, on the alleged identity of afflictive content between this sanction and daytime isolation, provided for in the cases indicated by Article 72 of the Criminal Code, and that is in the cases of "[c]oncurrence of crimes that import life imprisonment" and of concurrence between a crime for which the penalty of life imprisonment has been imposed with one or more crimes for which temporary custodial sentences have been applied for a total time exceeding five years.
On the point, it is however necessary to note that, if the nature of a real and proper penalty of life imprisonment with daytime isolation can well be predicated (Court of Cassation, First Criminal Section, judgments 10-16 September 2025, no. 31127, June 27-October 15, 2024, no. 37886 and January 8-April 28, 2021, no. 16115), distinct as such from "ordinary" life imprisonment to ensure a more severe sanction against multiple crimes one of which at least is already punished with life imprisonment, this does not mean that the mere coincidence of its execution modality suffices to confer the character of an autonomous penalty also to the disciplinary sanction of exclusion from common activities.
The exclusion from common activities provided for by Article 39, first paragraph, number 5), Penitentiary Law is not, in fact, ordered by the judge of cognition in the seat of commensuration of the penalty for the crime committed, but is applied by the penitentiary authority in consequence of a disciplinary infraction committed during the execution of the penalty. It can therefore graft itself onto any custodial sentence, moreover entailing an aggravation of the concrete modalities of the relative execution for a period much shorter (fifteen days at most) compared to that admissible for daytime isolation (which can extend up to three years in the hypothesis under Article 72, first paragraph, Criminal Code).
5.6.– Regarding then the "second Engel criterion," and that is the nature of the infraction that constitutes the prerequisite of the sanction, the referring judge highlights the structural similarities of the disciplinary offense with respect to the criminal offense, as well as the analogous guarantee statute recognized by the legislator to the procedure of assessment of the disciplinary offense and to the imposition of the relative sanction.
5.6.1.– Such similarities undoubtedly exist, and are indicative of the by now consolidated recognition of the consequences even heavily afflictive of many disciplinary sanctions with respect to the rights, even of constitutional nature, of the persons to whom they are destined to apply. Consequences felt, moreover, in a particularly acute way by those already subjected to severe limitations of their rights, such as prisoners.
In this logic, the jurisprudence of this Court has indeed considered extensible to disciplinary liability certain guarantees typical of criminal liability, such as the necessary proportionality and individualization of the sanction with respect to the gravity of the offense according to the measure of Article 3 of the Constitution (for a recent framework together of the constitutional jurisprudence on the point, judgment no. 153 of 2025, points 3 and 4 of the Considered in Law), even if taking into account the "peculiarities of a sanctioning system that pursues objectives different compared to those toward which criminal law is oriented" (judgment no. 133 of 2019, point 3.1. of the Considered in Law).
The legislator itself provides, ordinarily, that disciplinary liability be assessed according to scansions and procedural modules largely inspired by the fundamental guarantees of the criminal trial, albeit with the necessary adjustments deriving, first of all, from the diversity of the organs deputed to the assessment of the infractions and to the imposition of the sanctions. Still, the system ensures in general a penetrating subsequent judicial control on the legitimacy, and often also on the merit, of the sanction. Which happens, in particular, in the matter of disciplinary liability of prisoners, pursuant to Article 69, paragraph 6, letter a), Penitentiary Law, which attributes to the surveillance judge the competence to know of the complaints of prisoners against disciplinary sanctions, with cognition extended to the merit – among other things – with respect to the sanction applied to the defendant in the proceedings a quo.
5.6.2.– All this, however, does not imply that the entire equipment of guarantees that connotes the criminal matter from the point of view of constitutional, conventional, and union law must be transposed tout court to disciplinary sanctions.
On the conventional front, in fact, the constant jurisprudence of the ECtHR tends not to recognize to the generality of disciplinary sanctions (even with high afflictive content, such as those entailing the loss of the qualification to the exercise of a profession) the guarantees specifically applicable in criminal matters. Consequently, the Strasbourg Court has denied, for example:
– that the relative applicative proceeding is subject to the principles under Article 6 ECHR in its "volet pénal" (ex multis, judgments June 1, 2023, Grosam v. Czech Republic, paragraphs 117-122, in relation to a disciplinary proceeding against a professional exercising the public function of bailiff; February 9, 2021, Xhoxhaj v. Albania, paragraph 245, December 15, 2020, Piskin v. Turkey, paragraphs 105-109 and September 15, 2020, Čivinskaitė v. Lithuania, paragraphs 89-99, all in relation to disciplinary proceedings against public officials; January 28, 2020, Alì Riza v. Turkey, paragraph 154, in relation to a sports disciplinary proceeding; November 6, 2018, Ramos Nunes de Carvalho e Sá v. Portugal, paragraphs 124-128; October 31, 2017, Kamenos v. Cyprus, paragraphs 51-53; February 19, 2013, Müller-Hartburg v. Austria, paragraphs 42-49, in relation to a disciplinary proceeding against a lawyer and January 9, 2013 Oleksandr Volkov v. Ukraine, paragraphs 93-95, in relation to disciplinary proceedings against judges);
– that the challenged disciplinary sanction can be qualified as a "penalty" for the purposes of Article 7 ECHR (decision February 11, 2020, Platini v. Switzerland, paragraphs 44-49);
– that disciplinary proceedings on the same facts for which criminal action has been exercised give rise to a violation of the right to ne bis in idem recognized by Article 4 Prot. no. 7 ECHR (judgment May 31, 2011, Kurdov and Ivanov v. Bulgaria, paragraph 42).
For its part, this Court has already had the opportunity to observe that "Although disciplinary sanctions pertain in a broad sense to the sanctioning-punitive law, and for this very reason attract to themselves some of the guarantees that the Constitution and international human rights charters reserve for the penalty, they retain however their own specificity, even from the point of view of their constitutional statute, not being – for example – subject to the principle of the necessary reeducational function of the penalty, which this Court has always held to be an exclusive connotation of penalties in a strict sense" (judgment no. 197 of 2018, point 11 of the Considered in Law). Therefore, "some at least of the guarantees which, on the basis of the jurisprudence of this Court, surround the penalty in a strict sense do not apply, or apply with a greater degree of flexibility, to the sphere of disciplinary sanctions" (still judgment no. 197 of 2018, ibidem).
5.6.3.– The guarantees applicable to disciplinary liability must, therefore, take into account its peculiar goals within the specific sector of the legal system to which it finds from time to time application.
In this regard, it is necessary to observe that disciplinary rules impose standards of conduct for defined communities of persons. As calibrated on professional duties or in any case on the peculiar situation of such persons, such standards are ordinarily different and more demanding compared to those that are valid for the collectivity as a whole.
Now, if it is true – as the referring judge observes – that also criminal law knows rules that address determined categories of addressees, such as public officials or certain professionals, it is also true that the focus of the criminal reaction aims, even in these hypotheses, to protect general interests of the collectivity or of specific victims. Disciplinary liability is instead aimed at ensuring the enforcement of those standards of conduct in protection, primarily, of the material and ideal interests of the reference community itself, among which – for example – the prestige of the professional order involved or the trust that the users of a service legitimately repose in the correct fulfillment of their duties on the part of the members of that community.
Precisely for this reason, the enforcement of disciplinary rules is ideally ensured by streamlined proceedings, able to provide a rapid response to infractions, for the purpose not only of reinforcing the general observance of conduct rules within the circle of their addressees, but also of stimulating the prompt self-correction of deviant behaviors on the part of the single author. And this is unless – with respect to disciplinary sanctions that pertain to work or professional activities – the committed fact appears of such gravity as to prejudice at the root the judgment of suitability of the subject to continue to perform their functions (on this latter profile, in the matter of liability respectively of the notary and of the magistrate, the already cited judgments no. 133 of 2019, point 3.1. of the Considered in Law and no. 197 of 2018, point 11 of the Considered in Law).
Beyond, therefore, the undoubted structural similarities between disciplinary and criminal liability highlighted by the referring judge, it is the functional specificities of the rules and of the disciplinary sanctions themselves that justify, in a general line, their autonomy and independence with respect to the criminal sanction and the relative applicative proceeding, even in the hypothesis where the two liabilities spring from the same conduct.
5.6.4.– Regarding, then, the peculiar ambit of disciplinary liability of prisoners, it is conceived by the legislator as an integral part of the treatment of the convict. The penitentiary disciplinary regime must, by express legislative indication, be "implemented in such a way as to stimulate the sense of responsibility and the capacity for self-control" of the prisoner, and result "adequate to the physical and psychic conditions" of each subject, having also to take into account, in the application of the sanction, the treatment program in course (Art. 36 Penitentiary Law).
Now, as clarified by Article 2, paragraph 1, Penitentiary Regulation, "condition for the realization of the goals of the treatment" is the maintenance of "security," to be understood as the maintenance of the conditions for a peaceful coexistence immune from violence within the prison community. This as a guarantee both of the rights of the prisoners themselves against aggressions coming from other prisoners, as well as from possible abusive conduct of the prison staff; and of the safety and serenity of the prison staff themselves in the performance of their functions.
In this key must be read the reference itself accomplished by Article 1, paragraph 4, Penitentiary Law and by Article 2, paragraph 1, Penitentiary Regulation to the "order" and to the "discipline" within the institution. In a penitentiary system founded on the "respect of the rights of persons deprived of liberty" – as clarifies to avoid misunderstandings the first of the indicated provisions, that of primary rank –, such expressions cannot reasonably allude to a complex of formalistic rules aimed at regulating the most minute aspects of the existence of the prisoners. Similar rules would frustrate at the root the achievement of the legislative objective of favoring their "autonomy, responsibility, socialization, and integration" (Art. 1, paragraph 1, Penitentiary Law), in view of the ultimate objective carved by Article 27, third paragraph, of the Constitution. Those expressions, read in light of the constitutional principles that innervate the entire law on the penitentiary system, recall instead the necessary rules, first of all, for ensuring in practice security, and more generally the rights of all – even of the most vulnerable prisoners and therefore most exposed to the oppression of the strongest – within the prison community. A community that the legislator intended to found on the principle of the "respect of the dignity of the person" (again, Art. 1, paragraph 1, Penitentiary Law): of every person who lives, works, or lends their activity as a volunteer within the prison.
In this context, disciplinary sanctions for prisoners are structured so as to allow a rapid and effective reaction against conduct non-observant of fundamental rules for coexistence within the prison, or in any case significantly dysfunctional with respect to the performance of the reeducational treatment to which all other prisoners have the right, within the general systemic limit of proportion with respect to the gravity of the infraction itself; with the further possibility for the prison director, in cases of absolute urgency indicated by Article 78, paragraph 1, Penitentiary Regulation, to order the prisoner to remain in an individual cell while awaiting the convocation of the disciplinary council.
Both disciplinary sanctions and the precautionary measures under Article 78 Penitentiary Regulation have, not by chance, a limited duration: ordinarily not exceeding fifteen days the former (inclusive also of the precautionary measure itself: Art. 78, paragraph 4, Penitentiary Regulation) and not exceeding ten days the latter. This makes evident their primary function of "cooling off" of a transitory situation of tension, while awaiting a rapid restoration of the common treatment rules even for those who have been subjected to the sanction.
These structural and teleological traits mark a net functional distinction of such sanctions with respect to penalties, destined instead to intervene – in outcome of a proceeding and then a trial with high rate of formalization, in reason of the much more burdensome nature of the sanctions that could be applied in that seat – after spans of time wider from the commission of the crime.
Hence the impossibility of recognizing to such sanctions a "punitive" nature, at least for the purposes of the application of the guarantee of ne bis in idem with respect to criminal proceedings originated from the same conduct.
5.7.– Identical conclusions lead, moreover, also the "third Engel criterion," relative to the severity of the sanction.
5.7.1.– One cannot deny, of course, the afflictive scope of sanctions, like that in this seat under examination, which place incisive limits on the opportunities of socialization and participation in activities that form part of the treatment program, to which the prisoner has ordinarily the right.
However, on one side it is necessary to underline that exclusion from common activities applies to persons already subjected to penalties depriving of liberty, limiting itself therefore to making their execution methods temporarily more burdensome: which, as just recalled (supra, 5.3.), was considered by the jurisprudence of the ECtHR as a crucial argument for the purpose of denying the "punitive" nature of disciplinary sanctions applicable to prisoners, for the purposes of the extension to them of the relative conventional guarantees.
On the other, the disciplinary sanction in question entails, with respect to the ordinary methods of execution of the custodial sentence, a surplus of afflictiveness well delimited in time and contents.
Under the first profile, it can be ordered, as already highlighted, for a maximum period of fifteen days (Art. 39, first paragraph, number 5, Penitentiary Law), and therefore for a span of time much shorter compared to the generality of the penalties effectively executed.
Under the second profile, to temper and calibrate the afflictiveness of the sanction, in reason of the specific conditions of the addressee, are first of all its preclusion in cases where the sanctioned person is not believed to be in conditions to withstand it, as well as the constant medical check that must accompany the execution phase (Art. 39, second paragraph, Penitentiary Law).
The measure, moreover, is not totally segregative. Article 33 Penitentiary Law establishes in fact that during isolation normal life conditions are not admitted limitations, with the exception of those functional to the reasons that determined it (paragraph 3), and that isolation does not preclude the exercise of the right to carry out interviews in presence with authorized subjects (paragraph 4).
Consequently, prisoners subjected to this sanction are indeed excluded from moments in common within the prison and from contacts with other peers, but conserve the possibility of cultivating relations with the outside, in particular with family members and third parties, by means of personal and telephone interviews. Allowed to them are, also, epistolary correspondence and the possibility of receiving news by press or radio; and there is no doubt that the prisoner conserves the right to confer with ministers of cult, as well as the right to interview with the defender.
The framework that results is therefore – also by effect of the limitedness of the time arches to which the restrictions to the ordinary regime can be applied – well different from that which characterizes the forms of prison isolation that have attracted and attract the attention of the international soft law instruments evoked by the referring judge (supra, 1.7.3), to which many times this Court itself has made reference in its own jurisprudence in penitentiary matters (for example judgments no. 10 of 2024, point 4 of the Considered in Law; no. 18 of 2022, point 4.2. of the Considered in Law; no. 143 of 2013, point 2 of the Considered in Law); and it is well different, also, from that which results from the penalty of life imprisonment with daytime isolation, applicable in the cases provided for by Article 72, first paragraph, Criminal Code – as already recalled – for a maximum duration of three years.
5.7.2.– Nor, in the contrary sense, do the "indirect and secondary effects" which, in the words of the referring judge, could derive from the disciplinary sanction, in relation to the usability of the institutes of reward permit and early release, argue.
It is true, in fact, that the commission of a disciplinary infraction (even before the imposition of a disciplinary sanction) can undermine the judgment on the regularity of the conduct held in prison by the prisoner and, therefore, the positive evaluation in order to their participation in the work of reeducation, determining the denial, by the surveillance magistrate, of early release.
However, such effect is merely indirect and eventual. The jurisprudence of legitimacy – with evaluation shared also by this Court (judgment no. 201 of 2025, point 6.7.2. of the Considered in Law) – excludes every automatism between the application of disciplinary sanctions and the denial of early release, and imposes instead a judgment calibrated on the concrete case, founded on an overall appraisal of all aspects that connote the penitentiary treatment of the convict. In particular, it is excluded that a single disciplinary infraction can be considered sufficient to preclude to the prisoner the recognition of the benefit, in front of their for the rest continuous participation in the work of reeducation (among others, Court of Cassation, First Criminal Section, judgments March 28-July 3, 2025, no. 24506, May 27-July 12, 2019, no. 30717 and July 5-September 1, 2011, no. 32985).
5.8.– From all this follows the impossibility of considering the application of the disciplinary sanction under examination as "substantially punitive," for the purposes of the applicability to the prisoner of the guarantee of ne bis in idem, in this seat under discussion.
Such conclusion is, moreover, shared also by the criminal jurisprudence of legitimacy absolutely prevalent, which – for the purposes of the prohibition of bis in idem – denies, on the basis of arguments variously intersecting with those just carried out, the punitive (or "substantially criminal") nature of disciplinary sanctions already imposed definitively on the prisoner, and ordinarily already served by them (Court of Cassation, Second Criminal Section, judgment January 11-March 12, 2024, no. 10399; Sixth Criminal Section, judgment no. 1645 of 2020; Second Criminal Section, judgment February 14-April 9, 2019, no. 15609, in a case almost overlapping with that object of the proceeding a quo, as well as judgments February 16-May 23, 2018, no. 23043, June 20-September 21, 2017, no. 43435, June 20-September 21, 2017, no. 43434; Sixth Criminal Section, judgment no. 31873 of 2017. In a different sense, see only Second Criminal Section, judgment December 15, 2016-February 24, 2017, no. 9184, which moreover in the outcome denies the violation of the right to ne bis in idem with respect to the subsequent criminal trial for the same facts, recognizing between the two proceedings a sufficiently close connection according to the criteria indicated by the judgment of the ECtHR A and B v. Norway judgment).
6.– Neither are the questions raised subsidiarily, in reference to Articles 3 and 27, first and third paragraphs, of the Constitution, well-founded.
The referring judge complains not of a hypothetical manifest disproportion of the statutory minimum provided for by Article 635 of the Criminal Code with respect to the disvalue of the facts sanctioned by it, but of the impossibility of imposing a penalty lower than the statutory minimum taking into account the previous disciplinary sanction already served.
However, the same reasons that lead to denying that exclusion from common activities constitutes an autonomous penalty for the crime committed by the prisoner through the same material conduct constitutive of the disciplinary offense, such as to exclude even every further proceeding and sanction, allow also to exclude that such sanction can be considered, if not anything else, as a partial anticipation of the penalty that must be imposed on him for the crime in question. The sanction under examination is, as just illustrated (supra, 5.6.4.), a consequence of the disciplinary offense, which harms specifically the interests of the prison community: and therefore can well cumulate integrally to the penalty for the crime committed, which finds its cause in an act harmful of different interests (in the case object of the proceeding a quo, of the patrimonial interest of the prison administration).
Nor does the limited surplus of afflictiveness determined by exclusion from common activities with respect to the ordinary regime of the penalty that the defendant was already serving appear of such consistency as to have in any case to be considered (irrespective, therefore, of its qualification as "autonomous penalty" or as "anticipation of penalty") as a limitation of liberty "pre-served," to be necessarily deducted from the penalty applied for the new crime committed, just as is provided for precautionary custody or house arrest, by force of the same principle of proportionality of the penalty.
The current statutory framework provided for the crime under Article 635 of the Criminal Code and the generic mitigating circumstances themselves will allow in any case the judge to take into consideration, in the commensuration of the penalty, the factors indicative of the greater or lesser "need of penalty" of the single convict, among which also their possible positive behavior in the period of detention following the disciplinary offense and the execution of the sanction.
for these reasons
THE CONSTITUTIONAL COURT
1) declares inadmissible the question of constitutional legitimacy of Article 635, second paragraph, number 1), of the Criminal Code, raised, in reference to Article 13 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading;
2) declares not well-founded the questions of constitutional legitimacy of Article 649 of the Code of Criminal Procedure and of Article 635, second paragraph, number 1), of the Criminal Code, raised, in reference overall to Articles 3, 24, 27, first and third paragraphs, 111 and 117, first paragraph, of the Constitution, the latter in relation to Article 4 of Protocol no. 7 to the European Convention on Human Rights, by the Ordinary Court of Florence, First Criminal Section, sitting as a single judge, with the order indicated in the heading.
So decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on May 18, 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Reporting Judge
Roberto MILANA, Director of the Chancellery
Deposited in the Chancellery on July 2, 2026
The anonymized version complies, in the text, with the original.