JUDGMENT NO. 120

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 constitutional legitimacy of Art. 12-bis, paragraphs 1, 3, and 4, of Legislative Decree no. 286 of July 25, 1998 (Consolidated Act of provisions concerning immigration and rules on the status of aliens), introduced by Art. 8, paragraph 1, letter b), of Law Decree no. 20 of March 10, 2023 (Urgent provisions regarding legal entry flows of foreign workers and the prevention and suppression of irregular immigration), converted, with amendments, into Law no. 50 of May 5, 2023, initiated by the Judge of the Preliminary Hearing of the Ordinary Court of Syracuse, in the criminal proceedings against H.E.F. N. and M.S.M.A. E., by ordinance of October 16, 2025, registered as no. 10 of the 2026 ordinance register and published in the Official Gazette of the Republic no. 5, special series, of the year 2026, the hearing of which was scheduled for the chambers session of May 18.

Having examined the interventions of A.M.H.Y. H., filed out of time, and of the President of the Council of Ministers;

having heard in the chambers session of May 20, 2026, the Reporting Judge Francesco Saverio Marini;

deliberated in the chambers session of May 20, 2026.

Considerations of Fact

1.– By ordinance of October 16, 2025 (reg. ord. no. 10 of 2026), the Judge of the Preliminary Hearing of the Ordinary Court of Syracuse raised, with reference to Articles 3, 27, third paragraph, 11, and 117, first paragraph, of the Constitution – the latter two in relation to Art. 49, paragraph 3, of the Charter of Fundamental Rights of the European Union – questions of constitutional legitimacy regarding Art. 12-bis, paragraphs 1, 3, and 4, of Legislative Decree no. 286 of July 25, 1998 (Consolidated Act of provisions concerning immigration and rules on the status of aliens).

The referring judge challenges paragraphs 1 and 3 of the cited Art. 12-bis for "lack of proportionality of the statutory penalty"; paragraph 4, which imposes a "prohibition on balancing circumstances"; and finally, the "failure to provide for a mitigating circumstance for minor offenses with the possibility of balancing in terms of equivalence or prevalence with aggravating circumstances."

2.– The referring judge states that he is proceeding, in the context of an abbreviated trial, for the crimes of aiding and abetting illegal immigration (Art. 12 of the Immigration Consolidated Act), death and injuries as a consequence of illegal immigration crimes (Art. 12-bis of the same Consolidated Act), and negligent shipwreck (Art. 449 of the Penal Code, in relation to Art. 428 of the Penal Code).

In particular, the defendants are charged with having committed, "in complicity with each other and with other unknown subjects," "acts directed at illegally procuring the entry into the State territory of 34 non-EU citizens lacking a valid permit for entry into Italian territory," transporting them on a "small fiberglass vessel" and exposing them "due to the methods and duration of the transport to danger to their lives and safety"; as well as having contributed to "causing the death of three of the non-EU citizens transported on board [...] and the wounding of 10 others," because, due to the collision with a Coast Guard patrol boat that intervened for rescue purposes, the boat sank; and finally, having contributed "to causing the collision [...] and the consequent shipwreck and sinking of the vessel," used for "the sea crossing from Libya towards the Sicilian coasts," despite it being "totally inadequate for the journey undertaken due to its structural fragility, limited carrying capacity relative to the number of people transported, and the absence of signaling instruments suitable for making its presence perceived by other vessels."

3.– In the referring judge's opinion, the questions of constitutional legitimacy of Art. 12-bis, paragraphs 1, 3, and 4, of the Immigration Consolidated Act are relevant to the main proceedings, as he must "adjudicate on the existence of the charged crimes and the guilt of the defendants, consequently determining, should a conviction be reached, the measure of the penalty." Furthermore, "the facts as presented, if confirmed at the end of the trial, could constitute the charged crimes."

4.– Regarding the non-manifest groundlessness, the referring judge recalls how the challenged Art. 12-bis was introduced by Art. 8, paragraph 1, letter b), of Law Decree no. 20 of March 10, 2023 (Urgent provisions regarding legal entry flows of foreign workers and the prevention and suppression of irregular immigration), converted, with amendments, into Law no. 50 of May 5, 2023, with the aim of "tightening the sanctioning treatment in order to combat the aiding and abetting of irregular immigration."

The legislator thus provided for "an autonomous criminal offense and not [...] a circumstantiated hypothesis of the aiding and abetting offense," as demonstrated, in addition to the "literal data of the last paragraph which expressly defines the conduct in terms of a 'crime'," by "the reference made by Art. 12-bis, paragraph 5, to a series of legal institutes provided for by Art. 12," which would otherwise be superfluous.

It would be, in particular, an "offense with anticipated consummation, structured in terms of a complex offense or an offense aggravated by the event," which adds to the conduct of the crime referred to in Art. 12 of the Immigration Consolidated Act, the specializing element of the "aggravating event of death or personal injury as an unintended consequence." There is, in fact, a relationship of specialty between the two provisions, so much so that, "in the event of a conviction, only the most serious crime should be applied."

As for the sanctioning treatment, the crime is punished with imprisonment from twenty to thirty years if the act results in, "as an unintended consequence, the death of multiple persons," or "the death of one or more persons and serious or very serious injuries to one or more persons" (paragraph 1); from fifteen to twenty-four years "if the act results in the death of only one person" and, finally, from ten to twenty years, "if serious or very serious injuries to one or more persons result" (paragraph 2).

The penalty is then increased "when one of the hypotheses referred to in Article 12, paragraph 3, letters a) [i.e., if the act concerns the illegal entry or residence in the State territory of five or more persons], d) [i.e., if the act is committed by three or more persons in complicity with each other] and e) [i.e., if the authors of the act have weapons or explosive materials available] applies" (paragraph 3).

The penalty is also increased by one-third to one-half when at least two of the aggravating circumstances indicated in the previous paragraph occur, "as well as in the cases provided for by Article 12, paragraph 3-ter [i.e., if the acts are committed for the purpose of recruiting persons for prostitution or in any case for sexual or labor exploitation, or concern the entry of minors to be used in illicit activities for the purpose of favoring their exploitation; or are committed for the purpose of profit, including indirect profit]" (paragraph 3).

Finally, paragraph 4 of the challenged Art. 12-bis provides for the prohibition on balancing the aggravating circumstances referred to in paragraph 3 with mitigating circumstances, with the exception of those referred to in Articles 98 and 114 of the Penal Code.

5.– Having said that, the referring judge believes that Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act violates Articles 3, 27, third paragraph, 11, and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE, under the profile of the intrinsic unreasonableness and disproportion of the sanctioning treatment.

The "choice of such a high statutory penalty, especially in the minimum," would not be "in accordance with constitutional and supranational parameters," preventing "the judge from measuring [it] to the actual criminal disvalue of the act," especially because, in the incriminated case under examination, "conduct of gravity not entirely superimposable can be included, such as, for example, those [...] attributable to real exponents of organized migrant trafficking, but also attributable to subjects whose causal contribution [...] is occasional or isolated"; or to subjects "who, far from being part of a criminal organization, are in turn 'victims' of the system, being identified as mere executors of the criminal project" (the so-called "migrant-smugglers"). In such cases, "the criminal disvalue to be recognized to the act would assume different proportions, making a statutory limit such as the one currently provided for by the provision whose legitimacy is doubted totally disproportionate and therefore intrinsically unreasonable."

The provision of a penalty not measured to the actual gravity of the act, moreover, would result in an obstacle to the rehabilitative function, because the disproportionate sanctioning treatment would be perceived as unjust by the convicted person.

6.– The "severity of the penalties introduced by Art. 12-bis TUI" would also emerge from the comparison, "under the profile of 'extrinsic' [un]reasonableness," with other criminal provisions "which punish in a significantly different way conduct detrimental to the same legal interest integrated through analogous execution methods."

In this regard, the referring judge identifies a series of tertia comparationis.

First of all, he believes reference should be made to the discipline that would be applicable if the special criminal provision, subject to challenge, did not exist, i.e., "the aggravated provision referred to in paragraph 3 of Art. 12 TUI [...] in formal concurrence with the multiple homicide provided for by Art. 589 of the Penal Code, in turn aggravated under Art. 586 of the Penal Code," which provides for "a statutory minimum of six years of imprisonment, increased up to one-third." The sanctioning treatment provided for by Art. 12-bis would be more rigid, also because, "besides starting from a significantly higher statutory minimum," it provides for the prohibition of balancing, in cases where the aggravating circumstances of paragraph 3 occur.

Art. 586 of the Penal Code, moreover, which "must be taken into consideration [...] for identity of structure and protected interests (life and physical integrity) [...] refers, as regards the measure of the sanction, to the penalties respectively provided for the crimes of negligent homicide or negligent injury" and, therefore, in the case of the death of multiple persons, or death and injury of one or more persons, "the abstractly applicable penalty would be that of the last paragraph of Art. 589 of the Penal Code which [...] provides for the penalty that should be applied for the most serious of the violations (imprisonment from six months to five years) increased up to triple with a maximum limit of fifteen years and with a further increase (up to one-third)," i.e., a penalty ranging from a minimum of two years to a maximum of fifteen years of imprisonment.

Secondly, in the opinion of the referring judge, reference could be made to Art. 452-ter of the Penal Code, which also provides for a crime aggravated by the event: death or injury as a consequence of environmental pollution. The criminal provision under examination, "[i]n the case of the death of multiple persons, injury of multiple persons, or death of one or more persons and injury of one or more persons," imposes "the penalty that should be imposed for the most serious hypothesis [from five to ten years of imprisonment], increased up to triple, but the penalty of imprisonment cannot exceed twenty years."

The denounced disparity of treatment between analogous situations would be, moreover, "evident even if one takes into consideration the provisions on formal concurrence, aberrant crimes, and complex offenses, all institutes that allow graduating statutory limits so as to make the penalty effectively proportionate."

Finally, the referring judge invokes, as a term of reference, Art. 575 of the Penal Code, which punishes voluntary homicide with a penalty of imprisonment from twenty-one to twenty-four years; while Art. 12-bis punishes death caused by negligence with a penalty of fifteen to twenty-four years of imprisonment and, in the case of the death of multiple persons, with a penalty of twenty to thirty years of imprisonment. In this case, the sanctioning system "would end up obliterating the difference between the two criminal hypotheses under the profile of the subjective element, ending up treating situations with an ontologically different degree of guilt in an analogous way (if not even sanctioning the negligent hypothesis more seriously)."

7.– The referring judge observes, finally, to exclude a constitutionally oriented interpretation, that there is no "legal instrument suitable for bringing the sanctioning system provided for by Art. 12 bis back within tracks compatible with the constitutional and conventional principles of proportionality of the penalty."

In particular, "[a]n insurmountable obstacle" would be placed precisely by the prohibition of balancing between circumstances, which instead, "if admitted, would be able to allow graduations of the penalty in such a way as to adapt [it] [...] to the actual gravity of the crime," even if – notes the referring judge – "[i]n the concrete case it is not possible to resort to abstractly applicable mitigating circumstances."

The mitigating circumstance referred to in Art. 114 of the Penal Code – subtracted from the prohibition of balancing – would not be configurable, first of all because, operating on the terrain of causality, in the absence of concurrent conduct of other subjects "to whom the preponderant causal contribution can be attributed," "it does not seem logically sustainable that the only two concurrents in the crime have both (the positions of the defendants are in no way distinguishable) provided a contribution of minimal importance."

Moreover, even "if one hypothesized a (not charged) concurrence with others (hypothetically the organizers)," the mitigating circumstance in question "would not be applicable according to the consolidated interpretation of the Court of Cassation."

Finally, in the concrete case, "the conduct of driving the vessel in precarious and defective safety conditions" would not constitute "a small and marginal causal contribution."

8.– The referring judge laments, lastly, the failure to provide for the "balanceable circumstance of the minor offense, which would allow modulating the penalty on the actual gravity of the crime, taking into account all the criteria referred to in Art. 133 of the Penal Code, notably the degree of negligence and the capacity to commit crimes, profiles that must be taken into consideration in the main proceedings."

9.– The President of the Council of Ministers intervened in the proceedings, with an act filed on February 23, 2026, represented and defended by the State Attorney General, who requested that the questions be declared inadmissible and, on the merits, unfounded.

In the opinion of the state defense, all the questions – "in the triple articulation of the challenges formulated against the provision" – would be inadmissible, because they aim, "with an invasion of the field reserved to legislative discretion," at "a complete remodeling of the overall criminal sanction," through "an abrogation of the criminal provision [...], given that the statutory range, the regime of aggravating circumstances, the partial prohibition of balancing, and the absence of the minor offense with the relative balancing are challenged simultaneously."

With reference then to the "first question raised, relating to the sanctioning treatment both in the minimum and in the maximum," the question would be inadmissible under a double profile: "as to the affirmed intrinsic unreasonableness" of the penalty, because the referring judge "infers the disproportion [...] from a merely hypothetical and abstract judgment, completely detached from the presumed judgment"; as for "extrinsic disproportion," because the referring judge poses as tertia comparationis "completely inhomogeneous crimes" and "does not deduce what [...] the constitutionally correct penalty should be," not identifying the mandatory solution.

The questions relating to the partial prohibition of balancing and the failure to provide for the mitigating circumstance of the minor offense would also be inadmissible, because they are abstract and hypothetical and, therefore, lacking relevance. The referring judge, in fact, on one hand does not identify mitigating circumstances applicable to the defendants, on the other hand, expressly excludes the configurability of the mitigating circumstance referred to in Art. 114 of the Penal Code, assuming "that the act, both under the objective and subjective profile," cannot be qualified "as of minor entity."

10.– In the opinion of the State Attorney General, the questions would in any case be unfounded.

As for the alleged violation of Art. 3 of the Constitution for intrinsic unreasonableness, the sanctioning treatment would be "respectful of the principle of proportionality," because the crime provided for by the challenged Art. 12-bis of the Immigration Consolidated Act would have "a maximum charge of gravity (objective and subjective), for the serious injury to the right of every individual not to be subjected to inhuman or degrading treatment, for the injury to the life and health of migrants, in addition to the injury [...] of the inescapable public interests underlying irregular immigration, such as [...] international obligations."

As for the challenge of extrinsic disproportion, the state defense considers the tertia comparationis evoked by the referring judge inhomogeneous both on the structural level and on the sanctioning level. The provision comparable to the crime referred to in Art. 12-bis of the Immigration Consolidated Act – "for common identity of the element of inhuman or degrading treatment and the similar structuring of the complex provision" – could have been the crime of torture referred to in Art. 613-bis of the Penal Code, which provides for the penalty of thirty years of imprisonment in the case of death as an unintended consequence.

With reference then to the prohibition of balancing referred to in paragraph 4 of the same Art. 12-bis, the challenges would be unfounded because "it is consistent with the structure of the criminal provision" and in any case offers the judge the possibility to apply, and consider prevalent, the mitigating circumstance provided for by Art. 114 of the Penal Code, which would allow "lightening possible lesser concurrent responsibilities" and adapting the penalty "to the concrete content of the offensiveness of the crime" and to the "subjective disvalue," as in the case of "non-trafficker migrant-smugglers."

The questions would, finally, be unfounded also in relation to the challenged lack of the mitigating circumstance of the minor offense, which would not be "ontologically configurable in a crime of event [...] in which to be integrated the provision must result in the death of multiple persons or the death of one and injuries to others."

11.– The Union of Italian Penal Chambers (UCPI) presented a written opinion as an amicus curiae, arguing in support of the validity of the questions raised. The opinion was admitted by presidential decree of March 19, 2026.

It was, in particular, emphasized how the sanctioning treatment provided for by Art. 12-bis of the Immigration Consolidated Act would be detrimental to the principle of proportionality – expressed by Arts. 3 and 27, third paragraph, of the Constitution and by Art. 49, paragraph 3, of the CDFUE, through Arts. 11 and 117, first paragraph, of the Constitution – due to its "possible application [...] to subjects not inserted in criminal organizations, such as the so-called migrant-smugglers, often mere material executors of the crossing." An "excessively generalizing and undifferentiated approach to the phenomenon of irregular immigration" would derive from it, which would prevent "valorizing the lower degree of guilt of the agent and of the offensiveness of the conduct."

The challenge of lack of proportionality compared to the tertia comparationis identified by the referral ordinance would be equally well-founded.

The questions would, finally, be well-founded with reference both to the absence of the mitigating circumstance of minor entity, which would allow "re-establishing the proportion between the disvalue of the act and the punitive response," and to the prohibition of balancing between circumstances, with the exception of the mitigating circumstance referred to in Art. 114 of the Penal Code, which would not be applicable to the concrete case, in which "conduct, such as that of driving the vessel, deemed causally essential to the realization of the event" is charged.

12.– With an act filed on May 4, 2026, A.M.H.Y. H. intervened in the proceedings, assuming to be a bearer of a qualified interest, inherent directly and immediately to the relationship brought before the court, as he was convicted of the crime provided for by the challenged Art. 12-bis of the Immigration Consolidated Act to the penalty of seventeen years, nine months, and ten days of imprisonment, with judgment no. 270 of June 24, 2025, of the GUP of the Court of Syracuse, against which he filed an appeal. During the first instance proceedings, at the hearing of January 28, 2025, the intervenor had raised an exception of constitutional illegitimacy of the cited Art. 12-bis, declared unfounded by order of March 11, 2025, of the Judge for Preliminary Investigations of the Ordinary Court of Agrigento.

In the intervenor's opinion, the intervention act, even though filed beyond the terms established by Art. 4 of the Supplementary Rules for proceedings before the Constitutional Court, should be admitted "in consideration of the relevance of the proposed question." On the merits, he concludes for its validity.

Considerations of Law

13.– With the ordinance indicated in the heading (reg. ord. no. 10 of 2026), the GUP of the Ordinary Court of Syracuse raised – with reference to Arts. 3, 27, third paragraph, 11, and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE – questions of constitutional legitimacy regarding Art. 12-bis, paragraphs 1, 3, and 4, of the Immigration Consolidated Act, which outlines the crime of "[d]eath or injury as a consequence of crimes regarding illegal immigration."

In particular, the referring judge challenges paragraphs 1 and 3 of the cited Art. 12-bis, for "lack of proportionality of the statutory penalty"; paragraph 4, which imposes a "prohibition on balancing between circumstances"; and finally, he laments the "failure to provide for the mitigating circumstance of the minor offense with the possibility of balancing in terms of equivalence or prevalence [on] aggravating circumstances."

The referring judge reports that he is proceeding, in the context of an abbreviated trial, against two defendants, who are charged with having committed, "in complicity with each other and with other unknown subjects," "acts directed in an unequivocal way at illegally procuring the entry into the territory of the State [of] 34 non-EU citizens lacking a valid permit for entry into Italian territory," transporting them on a "small fiberglass vessel" and exposing them "due to the methods and duration of the transport to danger to their lives and safety"; as well as having contributed to "causing the death of three of the non-EU citizens transported on board [...] and the wounding of 10 others."

14.– The referring judge doubts, in the first place, that paragraphs 1 and 3 of the challenged Art. 12-bis violate Arts. 3, 27, third paragraph, 11, and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE, for intrinsic unreasonableness and disproportion.

The choice of such a high statutory penalty especially in the minimum, from twenty to thirty years, in fact, would prevent "the judge from measuring [it] to the actual criminal disvalue of the act," especially because, in the incriminated case under examination, "conduct of gravity not entirely superimposable" can be included.

It would, moreover, be detrimental to the evoked constitutional parameters that the legislator did not provide for a mitigating circumstance for minor offenses and had, instead, precluded, in paragraph 4 of the same Art. 12-bis, an adequate balancing between mitigating and aggravating circumstances.

In the opinion of the referring judge, finally, paragraphs 1 and 3 of the challenged Art. 12-bis would be in contrast with Art. 3 of the Constitution also "under the profile of 'extrinsic' [un]reasonableness" compared to other criminal provisions "which punish in a significantly different way conduct detrimental to the same legal interest integrated through analogous execution methods."

In essence, the referral ordinance denounces the sanctioning treatment of the crime provided for by Art. 12-bis of the Immigration Consolidated Act under three distinct profiles, to each of which corresponds a different petitum.

In the first place, the statutory minimum of the custodial penalty provided for by paragraph 1 (for the case of death of multiple persons or death even of only one person and serious or very serious injuries to one or more persons) and by paragraph 3 (for the aggravating circumstance of illegal entry or residence in the State territory of five or more persons) of the challenged Art. 12-bis would be excessive and it would be necessary, therefore, to reduce its entity; it would then be necessary to provide for a hypothesis of minor entity and it would therefore be necessary to introduce the relative mitigating circumstance; finally, the prohibition of balancing between circumstances, placed by paragraph 4, would prevent the judge from adapting the penalty to the disvalue of the act and should, therefore, be removed.

The three petita must be examined separately, since, although inspired by the same aim of overall mitigation of punitive rigor, they define autonomous questions.

15.– Preliminarily, it must be reiterated that the intervention ad adiuvandum explained in the proceedings of constitutional legitimacy by A.M.H.Y. H. is inadmissible, for the reasons already indicated in the ordinance of this Court no. 82 of 2026.

16.– It is then necessary to examine, always preliminarily, the exceptions of inadmissibility raised by the State Attorney General.

16.1.– In the first place, all the questions – "in the triple articulation of the challenges formulated against the provision" – would be inadmissible, because they would aim, "with an invasion of the field reserved to legislative discretion," at "a complete remodeling of the overall criminal sanction," through an "abrogation of the criminal provision [...], given that the statutory range, the regime of aggravating circumstances, the partial prohibition of balancing, and the absence of the minor offense with the relative balancing are challenged simultaneously."

The exception is unfounded.

Whether the legislative choice regarding the sanctioning treatment, for the different challenged profiles, falls within the discretionary options of the legislator or has exceeded one or more of the constitutional limits evoked by the referring judge is an assessment that pertains to the merits of the questions raised and, therefore, in that seat it must be examined.

16.2.– In the second place, the State Attorney General excepted the inadmissibility of the questions relating to the prohibition of balancing (Art. 12-bis, paragraph 4, of the Immigration Consolidated Act) and the failure to provide for the mitigating circumstance of minor entity, because they are abstract and hypothetical and, therefore, lacking relevance in the main proceedings. The referring judge, in fact, on one hand would not have identified mitigating circumstances applicable to the defendants, on the other hand, would have expressly excluded the configurability of the mitigating circumstance referred to in Art. 114 of the Penal Code, assuming "that the act, both under the objective and subjective profile," cannot be qualified "as of minor entity."

The exceptions are well-founded.

The referring judge does not identify any mitigating circumstance applicable in the concrete case on which he is called to adjudicate, with respect to which a problem of balancing with the aggravating circumstance charged to the defendants could arise, nor does he expose the reasons that could lead to qualifying the act for which he is proceeding as of minor entity.

The detected deficient description of the main proceedings, under the profiles considered, determines the inadmissibility of the questions relating to the prohibition of balancing between circumstances and to the failure to provide for the mitigating circumstance of minor entity, due to lack of motivation on relevance (lastly, judgments no. 31 of 2025, no. 198 of 2023, no. 249, no. 196, no. 33 and no. 28 of 2022).

16.3.– Finally, in the opinion of the state defense, the "first question raised, [i.e., that] relating to the sanctioning treatment" provided for by Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act, would be inadmissible under a double profile: "as to the affirmed intrinsic unreasonableness" of the penalty, because the referring judge "infers the disproportion [...] from a merely hypothetical and abstract judgment, completely detached from the presumed judgment"; as for "extrinsic disproportion," because the referring judge poses as tertia comparationis "completely inhomogeneous crimes" and "does not deduce what [...] the constitutionally correct penalty should be," not identifying the mandatory solution.

16.3.1.– As for the deduced abstract and hypothetical character of the questions, the exception is unfounded.

The referring judge reports the charges in which the conduct charged to the defendants whom he is required to judge are described. He, moreover, in excluding the configurability of the mitigating circumstance referred to in Art. 114 of the Penal Code, clarifies that "the positions of the defendants are in no way distinguishable" and that the conduct attributed to them is that "of driving the vessel [which then sank] in the precarious and defective safety conditions" described precisely in the charges.

The albeit synthetic reconstruction of the act performed by the referring judge allows considering the assessment regarding the relevance of the questions plausible (ex plurimis, judgments no. 10 of 2026, no. 154 and no. 108 of 2025).

16.3.2.– Also the exception of inadmissibility, for having the referring judge identified, as tertia comparationis, "completely inhomogeneous crimes," is unfounded.

The referring judge, in fact, challenged the "extrinsic" disproportion of the sanction provided for by Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act, comparing it with other criminal provisions, the potential unsuitability of which to act as a term of reference in order to verify the pretended injury of the principle of equality is an assessment that pertains to the merits of the questions raised and, therefore, in that seat it must be examined.

16.3.3.– The State Attorney General excepts, finally, the inadmissibility of the questions, since the referring judge "does not deduce what [...] the constitutionally correct penalty should be," not identifying the mandatory solution.

This exception is also unfounded.

According to the constant jurisprudence of this Court, in fact, "the ordinance for the referral of questions of constitutional legitimacy does not necessarily have to conclude with a disposition also carrying a petitum, it being sufficient that the content and direction of the challenges emerge clearly from the overall tenor of the motivation" (judgments no. 214 of 2025). In the case under examination, the questions are clearly aimed at "allowing" the judge "to parameterize the penalty to the actual criminal disvalue of the act," aligning the sanction provided for by the challenged Art. 12-bis to that provided for by Art. 12, paragraph 3, of the Immigration Consolidated Act in formal concurrence, under Art. 586 of the Penal Code, with multiple negligent homicide and injuries, or to that established by Art. 452-ter of the Penal Code.

Moreover, "once a vulnus to a principle or to a right recognized by the Constitution is ascertained, the absence of a single solution of 'mandatory rhymes' to bring the legal system back to compliance with the Constitution cannot be an obstacle to the examination of the question on the merits, even if one is in matters reserved to the discretion of the legislator – which is, typically, that of the determination of the sanctioning response to each criminal offense –, the presence in the legal system of one or more 'constitutionally adequate' solutions being sufficient for this purpose, drawn from already existing disciplines, which are inserted into the normative fabric coherently with the logic pursued by the legislator" (judgment no. 138 of 2024).

16.3.4.– This Court observes then that, just as "[t]he Immigration Consolidated Act Art. 12, and in particular its paragraphs 1, 3, 3-bis and 3-ter," Art. 12-bis also invests "a matter affected by obligations assumed in the seat of international law and imposed by European Union law." In particular, "[a]s for European Union law," obligations of incrimination are established "by the combined provisions of Council Framework Decision 2002/946/JHA of November 28, 2002, on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence, and of the Directive, adopted on the same date, 2002/90/EC of the Council, defining the facilitation of unauthorized entry, transit and residence (which together form the so-called 'Facilitators Package')" (judgment no. 63 of 2022).

Consequently, the question raised by the referring judge in relation to Art. 49, paragraph 3, of the CDFUE (through Arts. 11 and 117, first paragraph, of the Constitution) is "admissible [...] with regard to the condition – established by Art. 51 of the CDFUE, and constantly reminded by the same jurisprudence of this Court (ex multis, lastly, judgments no. 85 of 2024, point 2 of the Legal Considerations, and no. 183 of 2023, point 7 of the Legal Considerations) – that the controversy under examination falls within the scope of application of Union law" (judgment no. 7 of 2025; in the same sense, lastly, judgment no. 73 of 2026).

Moreover, the decision to "invest this Court with the assessment on the constitutional legitimacy [of Art. 12-bis of the Immigration Consolidated Act], at the measure of both the national parameters on which the principle of proportionality of the penalty is founded, and of Art. 49, paragraph 3, of the CDFUE itself [...], through Arts. 11 and 117, first paragraph, of the Constitution" is also "in accordance with the principles by now repeatedly enunciated by constitutional jurisprudence (starting from judgment no. 269 of 2017, point 5.2. of the Legal Considerations) for the hypothesis in which the judge detects an incompatibility between a national law and a rule of Union law endowed with direct effect" (judgment no. 7 of 2025).

It must, indeed, be reiterated that "the disapplication (total or partial) of a penalty provided for by Italian law would be a harbinger of 'uncertainties and disparities of treatment', with consequent prejudice to the principles of equality, legal certainty [...] and predictability of judicial decisions," placing itself also "in tension with respect to the principle of legality in criminal matters," which "requires that criminal rules – even in the part in which they provide for sanctions for the violation of the relative precepts – be formulated in a clear and precise way," also "to ensure as much as possible the equality of treatment between the convicted persons. This latter requirement would risk being compromised, where the discretionary power of the judge to determine the appropriate penalty (Art. 132 of the Penal Code) was not adequately delimited by precise indications provided by the legislator or by a pronouncement of this Court capable of replacing, with erga omnes effect, legislative provisions judged incompatible with constitutional and Union principles" (again, judgment no. 7 of 2025. In an analogous sense, with reference to the theme of the succession of laws in time, judgment no. 73 of 2026).

16.4.– The questions of constitutional legitimacy of Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act, with which the referring judge challenges the lack of proportionality, intrinsic and extrinsic, of the sanction provided by it for the crime of "[d]eath or injury as a consequence of crimes regarding illegal immigration," are admissible and can, therefore, be scrutinized on the merits.

It is necessary, however, to delimit the thema decidendum.

Although formulated in general terms, the questions that invest paragraph 3 must be understood as referring only to the circumstance actually recurring in the concrete case, i.e. – according to what the referring judge himself exposes – to the aggravating circumstance of the act concerning "the illegal entry or residence in the State territory of five or more persons," provided for by Art. 12, paragraph 3, letter a), of the Immigration Consolidated Act, referred to by the challenged Art. 12-bis, paragraph 3; and in these terms the relative object must be bounded.

17.– To the examination of the merits, it is useful to premise a brief framing of the criminal hypothesis provided for by the challenged Art. 12-bis of the Immigration Consolidated Act.

17.1.– The crime of "[d]eath or injury as a consequence of crimes regarding illegal immigration" was introduced by Art. 8, paragraph 1, letter b), of Law Decree no. 20 of 2023, as converted (so-called Cutro Decree), with the objective of combating illicit migrant trafficking conduct and preventing the increasingly substantial loss of human lives connected to it.

Art. 12-bis configures a crime aggravated by the event, constructed as a special hypothesis of that outlined by Art. 586 of the Penal Code, from which it differs precisely for the specific crime from which, as an unintended consequence, death and personal injury derive: not just any intentional crime, but the aggravated hypothesis of aiding and abetting illegal immigration provided for by Art. 12, paragraph 3, letters b) or c), of the Immigration Consolidated Act, with respect to which it integrates an autonomous criminal provision.

The new criminal hypothesis does not extend, therefore, the area of the "criminally relevant," as the same conduct, before the legislative reform, fell within the scope of application of the mentioned Art. 12 in formal concurrence, under Art. 586 of the Penal Code, with the crimes of multiple negligent homicide or personal injury. The main novelty concerns, instead, the sanctioning profile, which is tightened and on which today's questions of constitutional legitimacy are focused.

17.2.– The typical conduct – which, being able to be committed by "anyone," including the irregular foreigners themselves who, while procuring the illegal entry of others, procure their own at the same time, outlines a common crime – is described, by paragraph 1 of Art. 12-bis of the Immigration Consolidated Act, in terms substantially superimposable on those of Art. 12 of the Immigration Consolidated Act.

It is, however, further required, as a constitutive element of the typical act, that the transport or entry be implemented "with methods such as to expose people to danger to their lives or physical integrity or subjecting them to inhuman or degrading treatment." These modal elements of the conduct – which, in the crime provided for by Art. 12, constitute aggravating circumstances (paragraph 3, letters b) and c)) – are alternative to each other and are characterized by a close etiological correlation with the facilitation conduct.

The criminal hypothesis of Art. 12-bis of the Immigration Consolidated Act moreover – even though it is also, with reference to the aiding and abetting conduct, "'with anticipated consummation,' [because it is perfected] with the mere fulfillment of 'acts directed at procuring the illegal entry of foreigners,' without such purpose necessarily having to be achieved by the agent" (judgment no. 63 of 2022) – integrates a crime of event, which is consummated with "the death of multiple persons," or with the death even of only one person and the "serious or very serious injuries to one or more persons" (paragraph 1), or with "the death of only one person" or with "serious or very serious injuries to one or more persons" (paragraph 2). For the purposes of integrating the crime, it is therefore necessary to ascertain the existence of the causal link between the acts directed at procuring the illegal entry of the foreigner and one or more of the above-indicated harmful events.

17.3.– Regarding the subjective element, the facilitation conduct is imputable under intent (dolus), which must also embrace the specific methods with which the same is realized. The harmful events materially caused by the same conduct are, instead, by express legislative provision, necessarily unintended, on pain of the mutation of the title of the crime into voluntary homicide or personal injury; and must be imputed to the author of the same conduct under negligence, in conformity with the constitutional principle of culpability, "which the jurisprudence of this Court – starting from judgment no. 364 of 1988 [...] – derives from a systematic reading of the first and third paragraph of Art. 27 of the Constitution, enunciating respectively the principles of personality of criminal responsibility and of rehabilitative function of penalties" (judgment no. 21 of 2026).

17.4.– Under the profile of legal objectivity, finally, we are in the presence of a multi-offensive crime, in that, as "the entire range of criminal hypotheses described by Art. 12 of the Immigration Consolidated Act," it too has, as an object of protection, "the orderly management of migration flows: interest that this Court has for some time defined as an 'instrumental legal good,' through whose safeguarding the legislator implements protection in an advanced form of the complex of 'final' public goods, of certain constitutional importance, susceptible of being compromised by phenomena of uncontrolled immigration" (judgment no. 250 of 2010 and numerous precedents there in conforming sense), such as, in particular, the equilibria of the labor market, the (limited) resources of the social security system, order and public security" (judgment no. 63 of 2022).

However, the "horizon of protection" of the criminal hypothesis under examination "transcends by far that of the orderly management of migration flows," being the same aimed, "even if not exclusively, at protecting the transported people, who often are in a state of need, even extreme (judgment no. 142 of 2017)" (again judgment no. 63 of 2019). This Court has clarified, with reference to the aggravated hypothesis of aiding and abetting illegal immigration, that "[t]his appears evident with respect to the two hypotheses [...] provided for by letters b) and c) of paragraph 3 [of Art. 12], integrated by the person transported having been exposed respectively to a danger for their life or physical integrity, and even to inhuman or degrading treatment" (again, judgment no. 63 of 2022); hypotheses that, in the hypothesis of Art. 12-bis of the Immigration Consolidated Act, as already placed in evidence, represent not mere aggravating circumstances, but constitutive elements of the typical act.

Even in relation to this criminal hypothesis, therefore, it must be admitted that the "protected legal goods do not limit[ themselves] to those of public order and the security of the borders, but embrace also the fundamental rights of the transported people or illegally introduced into the territory of the Italian State, who [...] are exposed to danger of life and physical integrity as well as to inhuman and degrading treatment" (judgment 142 of 2017).

Moreover, the multi-offensive nature of the crime provided for by Art. 12-bis of the Immigration Consolidated Act is deduced not only from the particular execution methods of the conduct, but even more from the fact that, as has been said, its consummation requires the causation of the death or of the serious or very serious personal injuries of multiple persons. This confirms that the object of protection is also, and above all, the life and physical integrity of the migrants object of that illicit trafficking of persons that the legislator wanted to specifically combat with the introduction of the criminal provision under examination.

17.5.– As has been hinted, Art. 12-bis of the Immigration Consolidated Act – which outlines a complex crime, which comprises and absorbs the hypotheses of aiding and abetting illegal immigration referred to in Art. 12, paragraphs 1 and 3, letters b) or c), of the Immigration Consolidated Act, as well as the crimes of homicide and serious and very serious negligent personal injury – provides for a sanctioning treatment established in a gradual measure in function of the typology and number of harmful events verified.

In particular, paragraph 1 – challenged by the referring judge – provides for imprisonment from twenty to thirty years, if the act results in "the death of multiple persons," or the death also of only one person and "serious or very serious injuries to one or more persons." Paragraph 2 imposes imprisonment from fifteen to twenty-four years, if the act results in "the death of only one person." In the case, instead, of only "serious or very serious injuries to one or more persons," imprisonment from ten to twenty years applies.

Paragraph 3, then, provides for a series of aggravating circumstances by means of the reference to Art. 12, paragraphs 3 and 3-ter, of the Immigration Consolidated Act and paragraph 4 establishes the prohibition of balancing the described aggravating circumstances with any mitigating circumstances, with the exception of minor age (Art. 98 of the Penal Code), participation of minimal importance, and having been determined to commit the crime (Art. 114 of the Penal Code). Outside such hypotheses, the decreases of penalty connected to the mitigating circumstances "operate on the quantity of penalty resulting from the increase consequent to the predetermined aggravating circumstances."

18.– Having set these premises, the questions of constitutional legitimacy raised with reference to Arts. 3, 27, third paragraph, 11 and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE, for intrinsic unreasonableness and disproportion of the penalty provided for by Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act are not well-founded.

In the referring judge's opinion, the "choice of such a high statutory penalty especially in the minimum" would prevent "the judge from measuring [it] to the actual criminal disvalue of the act," especially because, in the criminal hypothesis under examination, "conduct of gravity not entirely superimposable" can be included, such as those attributable to real exponents of organized migrant trafficking, but also attributable to subjects whose causal contribution is occasional or isolated; or to subjects "who, far from being part of a criminal organization, are in turn 'victims' of the system, being identified as mere executors of the criminal project" (the so-called "migrant-smugglers").

18.1.– According to the constant jurisprudence of this Court, "the discretionary assessments of penalty dosimetry pertain to the legislator, with the sole limit of sanctioning choices that prove arbitrary or manifestly unreasonable" (ex multis, among the latest, judgments no. 35 of 2026 and no. 202 of 2025; in the same sense, judgments no. 91 and no. 46 of 2024, no. 120 of 2023, no. 260 and no. 95 of 2022, no. 62 of 2021). The scrutiny on the proportionality of the penalty – which must be particularly attentive with respect to criminal laws, in that they are "always susceptible of impacting, in addition to various other fundamental rights, on the personal liberty of their addressees" (judgment no. 46 of 2024) – can and must take place, however, "within the confines of the non-manifest unreasonableness of the sanctioning choice, beyond which, only, the latter can be deemed arbitrary and, therefore, justify the intervention of this Court" (judgment no. 35 of 2026).

In order "to perimetrize the assessment of constitutional legitimacy, a model of scrutiny on the 'intrinsic' proportionality of the penalty has been developed in which the particularly broad formulation of the challenged provision [...] and the harshness of the statutory minimum assume relief" (judgment no. 35 of 2026; in the same sense, among the most recent, judgments no. 202, no. 171 and no. 83 of 2025, as well as no. 91 of 2024).

Undoubtedly, the legislator has provided, for the new criminal hypothesis referred to in the challenged Art. 12-bis of the Immigration Consolidated Act, a "punitive response marked by exceptional harshness" (thus, judgment no. 113 of 2025 with reference to extortion kidnapping), both in the minimum (twenty years of imprisonment) and in the maximum (thirty years of imprisonment) statutory.

As emerges from the preparatory work, moreover, with the introduction of this hypothesis of crime, the intention was precisely to realize a sanctioning tightening, by means of the threatening of a penalty notably more severe than that which would have been applicable, before the legislative reform, pursuant to Art. 12, paragraph 3, letters b) or c), of the Immigration Consolidated Act in formal concurrence, under Art. 586 of the Penal Code, with the crimes of multiple negligent homicide or personal injury, to which the acts today subsumable in Art. 12-bis would have been attributable. And this with the aim – declaredly pursued by the legislator – of discouraging the rampant phenomenon of the transport of irregular migrants realized in conditions that expose the migrants themselves to grave danger for their lives and physical integrity and which, increasingly often, conclude, tragically, with the death of many of them, on whose state of need, even extreme, criminal organizations that profit from such activity often speculate.

18.2.– The sanctioning response is not, therefore, manifestly disproportionate with respect to the intrinsic gravity of the acts contemplated by the challenged criminal provision.

As has already been placed in evidence, in fact, the criminal hypothesis under examination is described in terms such as to exclude that it characterizes itself for that "notable descriptive latitude apt to involve a vast range of conduct of diversified disvalue, suitable, that is, to compromise the protected legal good in a profoundly different way" (judgment no. 202 of 2025).

It is undoubted that the new criminal provision embraces different conduct on the criminological level, as already observed by this Court in relation to the crime referred to in Art. 12 of the Immigration Consolidated Act, which, as anticipated, Art. 12-bis "reproduces" in the description of the typical act (judgment no. 63 of 2022). In this latter hypothesis, however, the entity of the offense inflicted on the victims – both for the type, and for the number of harmful events described by the criminal provision, which compromise the protected legal goods in maximum measure – is such as to connote the acts attributable to the abstract criminal hypothesis of very high disvalue and to exclude that they can be "totally immune from the profiles of social alarm [and of gravity] that induced the legislator to establish for this title of crime a statutory minimum of notable harshness (judgment no. 120 of 2023)" (thus, with reference to theft by snatching, judgment no. 171 of 2025).

First of all, methods of conduct are required, in themselves, seriously offensive of the protected legal goods – integrated by the person transported having been exposed to a danger for their life or physical integrity or, even, to inhuman or degrading treatment – which "cannot but call to mind the dramatic images of journeys on makeshift and overcrowded boats, or in precarious hiding places in refrigerator cells destined for the transport of goods, which often end in fatal events" (judgment no. 63 of 2022). Methods of conduct that, moreover, integrate constitutive elements of the criminal hypothesis and, therefore, are necessarily object of dolus. The conduct under examination is, moreover, "object of supranational obligations of greater punishability: the Palermo Protocol [i.e., the Protocol against the Smuggling of Migrants by Land, Sea and Air] requires for both an aggravating of penalty [...], while the 'Facilitators Package' imposes for the first hypothesis the adoption of penalties 'depriving of liberty, whose maximum cannot be lower than eight years'" (again, judgment no. 63 of 2022).

In the second place, the criminal hypothesis outlined by paragraph 1 of Art. 12-bis of the Immigration Consolidated Act, for which the statutory penalty is threatened in the minimum measure challenged by the referring judge (twenty years of imprisonment), is consummated with the causation of the "death of multiple persons," or with the death also of only one person and the "serious or very serious injuries to one or more persons," which, in addition to being materially attributable to the specific facilitation conduct, connoted by the modal elements of which it has been said, are imputed, under negligence in the concrete, to the author of the same. Moreover, since this person must act in the awareness of the conditions in which the transport occurs, one will, frequently, be in a hypothesis of negligence characterized by the foresight of the harmful event then concretely verified.

On the level of the description of the typical act, therefore, the modal elements of the conduct, which "increase [...] the disvalue of the illicit" (judgment no. 331 of 2011), and the serious harmful events causally linked to it – which injure goods of primary importance, such as life and physical integrity – enrich the offensive dimension of the new criminal hypothesis and select only conduct of notable gravity.

18.3.– Also with respect to the aggravation of penalty provided for by paragraph 3 of Art. 12-bis of the Immigration Consolidated Act, if the act concerns "the illegal entry or residence in the State territory of five or more persons," the denounced lack of proportionality of the penalty is not detectable.

This Court has already emphasized the "multi-offensive dimension" of the aggravated hypothesis under examination, which evokes, "according to the verisimilar intentions of the legislator, scenarios of involvement of criminal organizations active in international migrant trafficking," thus strengthening the offensive reach of the abstract hypothesis (judgment no. 63 of 2022).

Being, moreover, a circumstance with common effect, which implies an increase in the penalty of the base hypothesis up to one-third, its provision does not translate into a sanctioning response manifestly disproportionate with respect to the intrinsic gravity of the typology of the typified acts.

18.4.– The measure of the statutory penalty provided for the crime of "[d]eath or injury as a consequence of crimes regarding illegal immigration" constitutes a signal of the particular gravity of the act that the legislator intended to combat, connoted by an extremely significant disvalue, such as to justify precisely such a high penalty, with respect to which, therefore, the challenges of unreasonableness and intrinsic disproportion are not well-founded.

As anticipated, however, the acts attributable to the challenged Art. 12-bis are ascribable to "'types' of criminological [...] well distinct" (judgment no. 63 of 2022), among which stands out the figure of the so-called "non-trafficker migrant-smuggler," to which the referral ordinance itself refers.

With this expression, by now prevalent in judicial language itself, one indicates the irregular migrant – completely unrelated to any criminal association that has organized the transport – to whom is assigned, in an occasional and episodic way, the task of driving the means of transport or another logistical role (for example, of attendant to the satellite, of custodian of the food and water, of person in charge of order on board). Often, such subject is forced to assume this task, during the journey, through violence or threat, exercised on him or on his family members by the traffickers themselves, or from the need to face emergency situations.

To avoid that the application of the criminal provision to the cases in examination translates into a sanctioning treatment disproportionate and, therefore, detrimental to the evoked constitutional parameters, the judge will have to make use of all the instruments that the legal system puts at his disposal.

In addition to a punctual ascertainment of the elements, objective and subjective, of the hypothesis of crime, such as the causal link between the specific conduct of the migrant and the harmful event concretely verified, the intent with respect to said conduct and its concrete execution methods, the negligence in relation to the unintended event, the judge will be able to resort, to ascertain or calibrate the responsibility of the so-called migrant-smuggler, respectively, to the excluding causes or to the common mitigating circumstances.

With reference to the first, the concrete situation in which, as a rule, one of the irregular migrants is forced to assume the role of "smuggler" cannot but evoke the exculpating circumstance of the state of necessity (Art. 54 of the Penal Code).

Once the connection of the migrant with the criminal organization that planned and realized the transport operations is excluded, in fact, being forced to collaborate in the crossing due to the threats or violence suffered, or to escape the seriously degrading conditions present in many detention centers in which migrants are made to stay, or even again to face a situation of necessity produced by the "cynical action of abandonment in extraterritorial waters of the desperate" (Court of Cassation, first criminal section, judgment December 10, 2014-January 23, 2015, no. 3345), can well integrate that "actual danger of a serious damage to the person," not "otherwise avoidable," required by Art. 54, first paragraph, of the Penal Code. Nor, as a rule, can it be held that said danger, from which the migrant attempts to take shelter by means of the realization of the crime, is "voluntarily caused" by him simply for having undertaken the clandestine migratory path.

Nor can the evidentiary difficulties assume a character obstructive to the operativity of the state of necessity, considered that, pursuant to Art. 530, paragraph 3, of the Code of Criminal Procedure, if "there is doubt about the existence" of the justifications, "the judge pronounces a sentence of acquittal," where at least the defendant has alleged serious and circumstantial factual elements suitable for making the existence of the exculpating circumstance plausible, even if not completely proven (ex multis, Court of Cassation, fifth criminal section, judgment February 21-July 23, 2020, no. 22040; sixth criminal section, judgment September 11-October 23, 2018, no. 48280).

Should then the conduct of the so-called migrant-smuggler not be exculpable, the judge will be able to avail himself of other instruments prepared by the legal system, which allow reaching an attenuation of the sanctioning treatment, in homage, in addition to the principle of proportionality, to that of individualization of the penalty, "which requires taking into account the effective entity and the specific requirements of the individual cases" (judgment no. 117 of 2025), so as to make "as much as possible 'personal' the criminal responsibility, in the perspective marked by Art. 27, first paragraph" (judgment no. 7 of 2022).

In the case of multi-subjective commission of the crime referred to in the challenged Art. 12-bis, in particular, the mitigating circumstance of the contribution of minimal importance provided for by Art. 114, first paragraph, of the Penal Code will assume relief, which moreover paragraph 4 of the same Art. 12-bis makes fully balanceable with the so-called "armored" aggravating circumstances.

The application of the mitigating circumstance in question will allow calibrating the sanction to the contribution brought to the fact of crime by the individual concurrent, to his effective disvalue and to his reduced reproachability; which will be able to happen when the defendant is only the final link of a migrant trafficking attributable to a criminal association that profits from it and his conduct is objectively fungible, because easily replaceable with the action of other migrants or with a different distribution of tasks among them by the traffickers.

Always in a constitutionally oriented perspective, finally, relief will have to be attributed to the mitigating circumstance provided for by the third paragraph of Art. 114 of the Penal Code – also balanceable, pursuant to Art. 12-bis, paragraph 4, of the Immigration Consolidated Act with the so-called "armored" aggravating circumstances –, considered that the migrant could well find himself in a state of psychological subjection with respect to the traffickers, caused by the relationship of force established by them and by the consequent concern not to jeopardize his own interests or those of his family; subjection, or real and own psychological coercion that attenuates in the concrete, albeit without annulling them, his faculties of reaction and determines him to the commission of the crime.

19.– Also the questions of constitutional legitimacy raised with reference to Art. 3 of the Constitution, for "[un]reasonableness extrinsic" compared to the sanctioning treatment provided for by other criminal hypotheses evoked as tertia comparationis, are not well-founded.

First of all, it is necessary to take into account that, remaining firm the prohibitions explicitly listed by Art. 3, first paragraph, of the Constitution, "in the judgment of equality relevate [...] the only profiles for which one discusses [...] rights, duties or specific constitutional interests" (judgment no. 54 of 2026). Moreover, "[f]or constant constitutional jurisprudence, the comparison between normative hypotheses, aimed at verifying the non-manifest unreasonableness of legislative choices [...] must have as object homogeneous case histories, the comparison itself otherwise being unproposable (judgments no. 120 of 2023, no. 156 of 2020, no. 282 of 2010 and no. 161 of 2009)" (judgment no. 90 of 2025).

Therefore, only "in the face of sanctioning disparities between homogeneous hypotheses," or of sanctioning assimilations between heterogeneous hypotheses, "not supported by any reasonable justification," can it be held that the legislative choice transmigrates "into the manifest unreasonableness or into the arbitrariness" (judgment no. 68 of 2012).

19.1.– The referring judge poses the challenged Art. 12-bis, in the first place, in comparison with the crime of aiding and abetting illegal immigration aggravated pursuant to Art. 12, paragraph 3, letters b) or c), of the Immigration Consolidated Act, in formal concurrence, under Art. 586 of the Penal Code, with multiple homicide and negligent injuries.

As already evidenced, Art. 12-bis of the Immigration Consolidated Act provides for a special hypothesis of the crime referred to in Art. 586 of the Penal Code, sanctioning with a higher penalty – and therein resides the aim of its introduction – the conduct that, previously, fell within the scope of application of the criminal provisions assumed as tertia comparationis.

The provision of a special criminal hypothesis, with respect to others already present in the legal system, characterized by a different and more severe sanctioning treatment, does not entail a disparity of treatment detrimental to Art. 3 of the Constitution and falls, on the contrary, into the discretionary assessments of the legislator "on the opportunity of the recourse to criminal protection and on the optimal levels of the same" (judgment no. 95 of 2019), which encounter the sole limit of non-manifest unreasonableness.

It must, therefore, be concluded for the lack of foundation of this profile of challenge.

19.2.– In the second place, the judge a quo laments the manifest unreasonableness of the challenged sanctioning choice with respect to the statutory frame provided for by Art. 452-ter of the Penal Code, which for the crime of environmental pollution, imposes "the penalty of imprisonment from five to ten years" increased up to triple, with the limit of twenty years of imprisonment, "[i]n the case of the death of multiple persons" or of death also of only one person and of "injury of one or more persons."

Also this criminal provision introduces a special hypothesis of the crime referred to in Art. 586 of the Penal Code, providing for the crime of "[d]eath or injury as a consequence of the crime of environmental pollution"; however, beyond the identity of the unintended event and of its title of subjective imputation, the two criminal hypotheses present substantial differences, both on the level of legal objectivity, and on the level of typification.

In the crime assumed as tertium comparationis the base intentional hypothesis, placed in protection of the environment, is described by making reference to "one of the acts of which [Article] 452-bis," first paragraph, of the Penal Code, which consist in abusively causing "a significant and measurable compromise or deterioration: 1) of waters or air, or of extended or significant portions of soil or subsoil; 2) of an ecosystem, of biodiversity, including agrarian, of flora or fauna."

It integrates, therefore, a crime of free form, of event, the conduct having to cause the naturalistic event constituted by environmental compromise, and of damage, said event integrating the material and empirically verifiable injury of the protected good, which is precisely the environment.

The diversity as regards typification of the conduct and the inhomogeneity on the level of offensiveness of the hypotheses placed in comparison, therefore, induce to consider the profile of challenge unfounded.

Moreover, as deduced by the state defense, in the legal system there are other hypotheses of crimes aggravated by the event death punished with sanctions even more severe than those imposed by Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act, such as the crimes of kidnapping for extortion purposes, of terrorism or of subversion, aggravated by the unintended death of the kidnapped, for which the penalty of thirty years of imprisonment is provided (Arts. 289-bis and 630 of the Penal Code); as well as hypotheses in which the causation of the unintended event death determines a sharp raising of the statutory frame of the base intentional hypothesis, such as the crime of torture (Art. 613-bis of the Penal Code), in which if from the act "results the death [of the "tortured" person] as an unintended consequence, the penalty is of imprisonment of thirty years" instead of that of imprisonment from four to ten years.

19.3.– Finally, the referring judge challenges the "sanctioning assimilation" between the crime provided for by Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act and voluntary homicide, for which Art. 575 of the Penal Code provides "imprisonment 'not lower than twenty-one years': i.e. [...] the penalty of imprisonment from a minimum of twenty-one to a maximum of twenty-four years, the latter resulting from the general rule referred to in Art. 23 of the Penal Code" (judgment no. 197 of 2023).

In his opinion, "the sanctioning system [...] would end up obliterating the difference between the two criminal hypotheses under the profile of the subjective element, ending up treating situations with a degree of guilt ontologically different in an analogous way (if not even sanctioning the negligent hypothesis more seriously)."

As evidenced by this Court, if it is undeniable that "[e]very homicide injures in a definitive way a human life [and] since each person has equal dignity with respect to all the others, every homicide would seem to have identical disvalue," it must not be overlooked that "the death of a person can be caused with intent, with preterintention, with negligence. The material consequences of the action are identical: but the intensity of such reproach is very different in each of such hypotheses" (judgment no. 197 of 2023).

Having said this, the comparison with the hypothesis of voluntary homicide is not suitable to demonstrate the manifest unreasonableness and disproportion of the sanction provided for by the challenged Art. 12-bis of the Immigration Consolidated Act, if only one considers that the minimum penalty of twenty years of imprisonment – on which the challenges of the referring judge rest – is threatened for a multiple homicide, i.e., for "the death of multiple persons," or for the death also of one person, but flanked by "serious or very serious injuries to one or more persons."

The term of comparison identified by the judge a quo, therefore, is not pertinent, in that the comparison should have been effected with multiple voluntary homicide or with homicide in concurrence with voluntary injuries (judgment no. 54 of 2026).

Moreover, as already evidenced, the crime referred to in Art. 12-bis of the Immigration Consolidated Act, given its multi-offensive nature, is preposed to the protection of more legal goods: the orderly management of migration flows, and the constitutionally relevant interests underlying it, and even more the fundamental rights of the migrants, such as their dignity, their physical integrity and their life.

From it follows the lack of foundation also of this profile of challenge.

20.– For the reasons above exposed, the questions of constitutional legitimacy of Art. 12-bis, paragraphs 1 and 3, of the Immigration Consolidated Act, the latter limitedly to the aggravating circumstance of the act that concerns the illegal entry or residence in the State territory of five or more persons, raised with reference to Arts. 3, 27, third paragraph, 11 and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE, under the profile of both intrinsic unreasonableness and disproportion and of disparity of treatment, go declared not well-founded.

The questions of constitutional legitimacy relating to the prohibition of balancing between circumstances (Art. 12-bis, paragraph 4, of the Immigration Consolidated Act) and to the failure to provide for the mitigating circumstance of minor entity, raised with reference to the same constitutional parameters, go declared inadmissible.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the questions of constitutional legitimacy of Art. 12-bis of Legislative Decree no. 286 of July 25, 1998 (Consolidated Act of provisions concerning immigration and rules on the status of aliens), in the part in which it places, at paragraph 4, the prohibition of balancing between circumstances and does not provide for the mitigating circumstance of minor entity, raised, with reference to Arts. 3, 27, third paragraph, 11 and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the Charter of Fundamental Rights of the European Union, by the Judge of the Preliminary Hearing of the Ordinary Court of Syracuse with the ordinance indicated in the heading;

2) declares not well-founded the questions of constitutional legitimacy of Art. 12-bis, paragraphs 1 and 3, of Legislative Decree no. 286 of 1998, the latter limitedly to the aggravating circumstance of the act that concerns the illegal entry or residence in the State territory of five or more persons, raised, with reference to Arts. 3, 27, third paragraph, 11 and 117, first paragraph, of the Constitution, the latter two in relation to Art. 49, paragraph 3, of the CDFUE, by the Judge of the Preliminary Hearing of the Ordinary Court of Syracuse with the ordinance indicated in the heading.

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

Signed:

Giovanni AMOROSO, President

Francesco Saverio MARINI, Reporting Judge

Igor DI BERNARDINI, Chancellor

Deposited in the Chancellery on July 3, 2026

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