JUDGMENT NO. 123

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 11 of Law no. 146 of March 16, 2006 (Ratification and implementation of the United Nations Convention and Protocols against Transnational Organized Crime, adopted by the General Assembly on November 15, 2000, and May 31, 2001), brought by the Preliminary Hearing Judge of the Ordinary Court of Arezzo, acting as the enforcement judge, through orders dated April 28 and April 29, 2025, registered under numbers 143 and 144 of the 2025 Register of Orders and published in the Official Gazette of the Republic no. 35, first special series, of the year 2025.

Having examined the statement of appearance of M.F., as well as the intervening act of the President of the Council of Ministers;

having heard in the public hearing of March 24, 2026, the Reporting Judge Massimo Luciani;

having heard the lawyers Vittorio Manes and Andrea Saccucci on behalf of M.F., as well as the State Attorneys Cecilia De Nicola and Domenico Maimone on behalf of the President of the Council of Ministers;

deliberated in the chambers on March 24, 2026.

Legal Reasoning (Fatto)

1.– By means of two orders with nearly identical content, dated April 28 and April 29, 2025, registered under numbers 143 and 144 of the 2025 Register of Orders, the Preliminary Hearing Judge of the Ordinary Court of Arezzo, acting as the enforcement judge, raised questions of constitutional legitimacy regarding Article 11 of Law no. 146 of March 16, 2006 (Ratification and implementation of the United Nations Convention and Protocols against Transnational Organized Crime, adopted by the General Assembly on November 15, 2000, and May 31, 2001), with reference to Articles 25, paragraph 2, and 117, paragraph 1, of the Constitution, in relation to Article 7 of the European Convention on Human Rights (ECHR). The challenge concerns the provision for the forfeiture of sums of money, assets, or other utilities available to the offender, including through an intermediary physical or legal person, in an amount corresponding to the product, profit, or price of the crime, "in the judgment of conviction" and not following "a judgment of application of penalty upon request of the parties (patteggiamento) pursuant to Art. 444 et seq. of the Code of Criminal Procedure."

The referring judge sets out the facts of the case, stating that they are called to decide, within the scope of execution proceedings, upon the request for revocation of the forfeiture by equivalent ordered by Judgment no. 340 of 2017, issued pursuant to Art. 444 of the Code of Criminal Procedure by the Preliminary Hearing Judge of the Court of Arezzo against F.B. (Reg. Ord. no. 143 of 2025) and M.F. (Reg. Ord. no. 144 of 2025). This judgment of "patteggiamento" became irrevocable on February 27, 2019, when the Court of Cassation, Second Criminal Section, with Judgment no. 16100 of February 27–April 12, 2019, rejected the appeals filed against the forfeiture ordered in the aforementioned ruling.

1.1.– Regarding the relevance of the questions, the referring judge affirms that, since the forfeiture concerns, in both cases, sums of money or movable/immovable assets not directly derived from the contested crimes, it was ordered by equivalent and that, should the questions be upheld, the restitution of the forfeited assets should be ordered.

The finality of the judgment regarding the forfeiture measures is not considered an obstacle to relevance: while excluding the retroactivity of favorable jurisprudential changes (referencing Judgment no. 230 of 2012 of this Court, and Court of Cassation, Third Criminal Section, Judgment no. 32469 of June 1–July 26, 2023, and Sixth Criminal Section, Judgment no. 19429 of May 31, 2022), the referring judge maintains that, in the enforcement phase, the jurisprudence of legitimacy has opened to the possibility of jurisprudential change recognized by the United Sections of the Court of Cassation, to be considered among new legal elements. In this regard, reference is made to the Court of Cassation, United Criminal Sections, Judgment no. 18288 of January 21–May 13, 2010, according to which, "a systematic interpretation of Art. 666, paragraph 2, of the Code of Criminal Procedure is required in light of the provisions of the European Convention on Human Rights (ECHR), with particular reference to the principle of criminal legality under Art. 7, as interpreted by European jurisprudence, to satisfy the need for a dialogic interaction between the hermeneutic activity of the national judge and that of the European judge, from the perspective of the most complete protection of fundamental human rights." The new wording of Art. 618, paragraph 1-bis, of the Code of Criminal Procedure and the assimilation of "jurisprudential law" to positive law (citing Court of Cassation, United Criminal Sections, Judgment no. 8052 of October 26, 2023–February 23, 2024, which values the inclusion within the concept of criminal legality of both legislatively produced law and jurisprudentially derived law) also contribute to this conclusion.

Therefore, the referring judge argues, the issue is not to "ascertain whether a subsequent jurisprudential change can overturn a final judgment," but rather to verify whether the forfeiture provided for by Art. 11 of Law no. 146/2006 constitutes a penalty and whether the rule respects the standard of foreseeability and legality, including in the supranational dimension. Such verification would imply an "assessment of the nature of the judgment of application of penalty."

1.2.– With reference to the non-manifest groundlessness of the questions, the referring judge traces the evolution of the jurisprudence of legitimacy regarding forfeiture by equivalent, which traditionally recognized its sanctionatory nature and, consequently, its non-applicability to legal persons in the case of tax crimes committed by a legal representative (Court of Cassation, United Criminal Sections, Judgment no. 10561 of January 30–March 5, 2014) and its non-applicability in the event of extinction of the crime due to the statute of limitations (Court of Cassation, United Criminal Sections, Judgment no. 31617 of June 26–July 21, 2015).

This approach was recently subject to reconsideration when the United Criminal Sections of the Court of Cassation, with Judgment no. 13783 of September 26, 2024–April 8, 2025, noted, in line with what was recently affirmed by this Court, that "forfeitures assume a 'punitive' character only when they inflict 'upon the perpetrator of the offense a limitation on the right of property of a scope greater [(and, as a rule, much greater)] than that which would derive from the mere ablation of the unfair economic advantage [derived from the offense].' Therefore, if the forfeiture—direct or by equivalent—does not subtract more than what was achieved by the offense, it has an afflictive, restorative, but not punitive character." Based on this different reconstruction, the referring judge argues, "if it is true that forfeiture by equivalent has a sanctionatory nature, because it breaks the nexus of pertinency between the asset and the crime, it is also true that it does not affect the quantitative identity of the relationship between the crime and the offender because, with ablation by equivalent, its restorative essence is reaffirmed"; therefore, as observed by this Court in Judgment no. 7 of 2025, "where [...] the forfeiture of an asset or a sum of money has the nature of a penalty, that same nature must also be ascribed to the corresponding hypothesis of forfeiture by equivalent."

Therefore, forfeiture by equivalent has an afflictive nature, but not inherently punitive, when it limits itself to restoring the economic situation prior to the crime, while it assumes a punitive character only when it subtracts from the offender more than what he/she acquired through the crime.

Nevertheless, the referring judge observes that "such a distinction is not relevant in the present case since the central theme concerns the foreseeability of the measure in question" and therefore compliance with the principle of specificity (tassatività).

Having premised this, the judge argues in favor of the merely restorative and therefore afflictive, not punitive, function of the forfeiture provided for by Art. 11 of Law no. 146/2006, as it is directed to eliminate from the offender's assets "an economic item—irrelevant in its identification, but relevant only in the quantum—of a value equivalent to the product, profit, or price of the crime." While at the time the process was celebrated the applied measure was attributed a punitive nature, today "this certainty no longer exists," thus compromising the paradigm of foreseeability.

This being the case regarding the nature of the ablative measure, the referring judge considers it indispensable to "verify whether forfeiture by equivalent was a foreseeable measure in its application for those who settled the position pursuant to Art. 444 of the Code of Criminal Procedure."

While "[i]n the past, Art. 444 of the Code of Criminal Procedure established a general principle of equating the judgment of application of penalty to the judgment of conviction, with the exception of those consequences expressly excluded by the legislator," with the amendment introduced by Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 134 of September 27, 2021, containing delegation to the Government for the efficiency of the criminal process, as well as regarding restorative justice and provisions for the speedy definition of judicial proceedings), the possibility was provided for the parties to reach an agreement also on accessory penalties, their duration, and optional forfeiture.

The referring judge highlights that, despite this Court having affirmed the full equivalence between the judgment of conviction and the judgment of so-called "patteggiamento" (referencing Judgment no. 336 of 2009), "Art. 445, para. 1, of the Code of Criminal Procedure expressly mentions only the forfeiture under Art. 240 of the Penal Code—therefore direct, whether it be optional or mandatory—and not equivalent [forfeiture]," a provision that would seem to guide toward a different nature between a "judgment of conviction" and a "judgment of application of penalty."

Therefore, the referring judge maintains, "in the face of cases that expressly provide for the application of forfeiture by equivalent in the presence of a judgment of application of penalty, it becomes [...] complex to argue that the equivalence generically established by Art. 444 of the Code of Criminal Procedure can automatically re-expand into all those hypotheses of forfeiture of value in which—even if provided for, as in Art. 11 of Law 146/2006—it is positivized only in the face of a judgment of conviction."

Supranational jurisprudence (referencing European Court of Human Rights, Second Section, Judgment of October 29, 2013, Varvara v. Italy) and the jurisprudence of legitimacy (referencing Court of Cassation, United Criminal Sections, no. 31617 of 2015) would also seem to require, for the application of forfeiture by equivalent, as it is a penalty, a formal assessment of the criminal responsibility of the offender. Moreover, the jurisprudence of this Court, in underscoring that a "patteggiamento" is "a judgment that is only 'equated' to a conviction and that remains ineffective in extra-penal proceedings" (Judgment no. 83 of 2024), would seem to consider it unsuitable for a full assessment of criminal responsibility. Also, recent jurisprudence of the ECtHR would have affirmed the necessity of a judgment of conviction in a formal sense for the application of forfeiture under Art. 322-ter of the Penal Code, deeming the assessment of responsibility carried out in the first instance and implicitly confirmed on appeal insufficient, despite the statute of limitations of the crime (referencing ECtHR, First Section, Judgment of December 19, 2024, Episcopo and Bassani v. Italy).

Well then, the referring judge argues, if the non-definitive assessment of criminal responsibility was deemed by the ECtHR insufficient for the application of a forfeiture that presupposes a conviction, "one wonders how an institution of an afflictive or punitive nature can find application in the presence of a 'patteggiamento' judgment—the assessment of which has an ontologically weak nature—where not expressly provided for by the rule."

Having premised this, in the presence of an uncertain regulatory and jurisprudential framework regarding the penalty nature of forfeiture of value and the nature of the "patteggiamento" judgment, the referring judge believes that Art. 11 of Law no. 146/2006 "does not fully respect the canons of accessibility and foreseeability, as declined by Art. 7 ECHR—as interpreted by the jurisprudence of the ECtHR—potentially integrating a violation of Articles 25 and 117 of the Constitution."

2.– The President of the Council of Ministers intervened in both proceedings, represented and defended by the State Attorney General's Office, requesting, through two distinct and substantially overlapping acts, that the aforementioned questions of constitutional legitimacy be declared inadmissible or, in any event, unfounded.

2.1.– In the opinion of the intervenor, the questions are inadmissible due to a lack of clarity in the *petitum*: indeed, while the operative part casts doubt on the constitutional legitimacy of Art. 11 of Law no. 146/2006, "in the part in which it provides for the application of forfeiture [...] with the judgment of conviction and not also following a judgment of application of penalty upon request of the parties pursuant to Art. 444 et seq. of the Code of Criminal Procedure," in the reasoning of the referral order the doubt of constitutional legitimacy would instead appear founded precisely on the applicability of forfeiture by equivalent even following the issuance of a "patteggiamento" judgment.

2.2.– The specific questions concerning the forfeiture of money and the vehicle (Reg. Ord. no. 143 of 2025), as well as the forfeiture of real estate (Reg. Ord. no. 144 of 2025), would then, in the opinion of the intervenor, be inadmissible due to a lack of relevance.

As for sums of money, in fact, a direct forfeiture was ordered, not by equivalent, in adherence to the jurisprudential trend consolidated before the jurisprudential change that occurred with the aforementioned Judgment no. 13783 of 2025 of the United Criminal Sections of the Court of Cassation. In any case, the supervening jurisprudential change would not allow the revocation of the final judgment, which is conceivable only in the case of *abolitio criminis* or a declaration of constitutional illegitimacy of the incriminating rule (or a different rule suitable for mitigating the sanctionatory treatment).

Nor would the principle asserted by the Court of Cassation with Judgment no. 18288 of 2010 be relevant, according to which the jurisprudential change expressed by the United Sections would fall within the "new elements" suitable for making the execution incident admissible pursuant to Art. 666 of the Code of Criminal Procedure, as it is a principle referred to the "superability of the 'enforceable judgment,' that is to say, of the previous measure of the execution judge who had already pronounced on another request."

Therefore, the jurisprudential change regarding the qualification of the forfeiture of money would not be suitable to overturn the final judgment through an execution incident.

Neither would the questions concerning forfeiture by equivalent of the vehicle and real estate be relevant, as the indicated jurisprudential change would not be favorable and therefore would not be abstractly susceptible to being applied retroactively as *lex mitior*. Indeed, the State Attorney's Office argues that: a) with the judgment of the Court of Cassation, United Criminal Sections, no. 13783 of 2025, endorsed by the jurisprudence of this Court (citing Judgment no. 7 of 2025) and that of the ECtHR (with the Episcopo and Bassani v. Italy judgment), a jurisprudential change was determined by virtue of which the nature of forfeiture by equivalent ceased to be always punitive, "presenting a merely restorative function of the patrimonial situation prior to the commission of the crime"; b) said change would not be "actually favorable and, therefore, susceptible in the abstract to be applied retroactively for the principle of the retroactivity of *lex mitior*, ending up worsening the position of those who are bound by a judgment of application of the penalty upon request of the parties."

2.3.– In any case, the parameters referenced by the referral order would not be relevant: "the question concerning the foreseeability of the application of forfeiture by equivalent as a consequence of the 'patteggiamento' judgment should be evaluated, logically, on the basis of the legal discipline and jurisprudential trends in force at the time when said forfeiture was applied, revealing for this purpose the jurisprudential changes mentioned to be completely irrelevant."

Moreover, in noting that "the principle of substantive legality/foreseeability finds its foundation in Art. 7 ECHR," it is the most recent jurisprudence that has expressly excluded that forfeiture by equivalent, as an afflictive measure, but, by reason of the restorative function, not punitive, falls within the scope of application of Art. 7 ECHR (referencing the cited ECtHR judgment rendered in the Episcopo and Bassani case); since forfeiture is not a penalty, pursuant to Articles 25 of the Constitution and 7 of the ECHR, the guarantees against the ablative measure would instead be found in Articles 42 of the Constitution and 1 of Protocol no. 1 to the ECHR.

2.4.– In the opinion of the intervenor, the questions raised would in any case be unfounded.

At the time of the application of forfeiture by equivalent, Art. 445 of the Code of Criminal Procedure expressly provided that the "patteggiamento" judgment be "equated to a pronouncement of conviction" and that with it the direct forfeiture under Art. 240 of the Penal Code could be ordered. In this regard, in fact, with Law no. 134 of June 12, 2003 (Amendments to the Code of Criminal Procedure regarding the application of the penalty upon request of the parties), the applicability of forfeiture was extended, previously restricted to the hypotheses contemplated by the second paragraph of Art. 240 of the Penal Code, to all those indicated by that rule, which, indeed, in the second paragraph, number 1-bis), also disciplines forfeiture by equivalent.

Therefore, the referring judge's assumption that Art. 445 of the Code of Criminal Procedure would expressly mention only direct forfeiture and not equivalent forfeiture would be incorrect.

Rather, since the third paragraph of Art. 240 of the Penal Code expressly provides that forfeiture by equivalent "also applies in the case of application of the penalty upon request of the parties pursuant to article 444 of the Code of Criminal Procedure," the referenced regulatory framework would make the "patteggiamento" judgment and forfeiture by equivalent with a restorative function compatible.

The general rule of equating the "patteggiamento" judgment to that of conviction, dictated by Art. 445 of the Code of Criminal Procedure, would then be suitable to also found the adoption, with the "patteggiamento" judgment, of the forfeiture measure with a punitive purpose.

In this sense, the tenor of Art. 322-ter of the Penal Code would also point, which, after having explicitly referenced the "patteggiamento" judgment in the first two paragraphs as a title for the adoption of forfeiture by equivalent, in the third paragraph provides that "the judge, with the judgment of conviction, determines the sums of money or identifies the assets subject to forfeiture as constituting the profit or price of the crime or as of a value corresponding to the profit or price of the crime." The reference to the "judgment of conviction," in fact, would seem to indicate both that issued at the outcome of a full cognition and that of "patteggiamento."

Therefore, an equal conclusion should be reached also regarding the reference of Art. 11 of Law no. 146/2006 to the judgment of conviction.

2.5.– Even the novelties introduced by Legislative Decree no. 150 of 2022 would confirm the thesis of the compatibility of the "patteggiamento" judgment with forfeiture by equivalent, it being possible today, in the so-called "extended patteggiamento," that the procedural agreement also concerns accessory penalties and optional forfeiture, but not mandatory forfeiture. Furthermore, despite having increased the hypotheses of express ineffectiveness of the "patteggiamento" judgment in other proceedings, "the legislator did not concern himself with excluding the equivalence of the aforementioned judgment to that of conviction for the purposes of forfeiture."

2.6.– Regarding the foreseeability of the application of forfeiture by equivalent as a consequence of the "patteggiamento" judgment, finally, the intervenor references the Court of Cassation judgment no. 16100 of 2019, which rendered the ablative provision rendered with the judgment of the Court of Arezzo irrevocable, confirming the measure and referencing the consolidated jurisprudential trends formed on the matter.

Moreover, Strasbourg jurisprudence has clarified that the requirement of the foreseeability of measures that determine an interference in the right to the peaceful enjoyment of property guaranteed by Art. 1 Prot. Add. ECHR must be assessed with regard to the moment in which the interference occurs, which coincides with the issuance of the forfeiture measure (referencing once again the Episcopo and Bassani judgment of the ECtHR).

2.7.– The forfeitures ordered with the "patteggiamento" judgment in the proceedings *a quibus*, concludes the intervenor, have a restorative nature, so that the constitutional and conventional guarantees reserved for penalties are not applicable to them, including the necessity of a conviction "in a formal sense." It follows that even a "patteggiamento" judgment, equated to the pronouncement of conviction, can legitimately order a forfeiture with a restorative purpose.

3.– M.F. (party in the proceeding registered under no. 144 of the 2025 Reg. Ord.) entered an appearance in the proceeding, concluding for the non-foundedness of the aforementioned questions of constitutional legitimacy, if interpreted as soliciting a pronouncement that allows the application of forfeiture by equivalent with the "patteggiamento" judgment, but concluding for their foundedness, "if interpreted in the sense that it allows the application of forfeiture by equivalent also in the case of definition of the proceeding with a judgment of application of the penalty upon request of the parties."

In referencing the conduct of the proceeding *a quo* and the main arguments of the referral order, the party argues the unsuitability of the "patteggiamento" judgment to constitute a title for the application of forfeiture of value pursuant to Art. 11 of Law no. 146/2006, as it is based on a "weak" assessment, not compatible with the guarantees deriving from Art. 7 ECHR; furthermore, it would not be sustainable that the equivalence generically established by Art. 444 of the Code of Criminal Procedure can automatically re-expand into all the hypotheses of forfeiture of value in which it is provided only in the face of a judgment of conviction.

Having premised this, the party believes that the referring judge should have detected and declared the illegality of the forfeiture, as it is not applicable with the "patteggiamento" judgment: incompatible with the constitutional and conventional parameters invoked would in fact be the interpretation of the "provision that claims to extend its application to the case in which the proceeding is defined with a type of judgment—that which applies the agreed penalty—different from that provided by the law (that is, the 'judgment of conviction,' as the rule in question textually recites)" (emphasis in original). Such an interpretation would constitute an analogical extension *in malam partem* of the criminal rule, which, if interpreted in compliance with the constitutional and conventional principle of legality in criminal matters, would not allow for the application of forfeiture with the "patteggiamento" judgment, but only with the judgment of conviction.

3.1.– With a brief filed on March 3, 2026, the party reiterated the conclusions already submitted, also attaching two *pro veritate* opinions.

In particular, after having affirmed the criminal nature of the forfeiture ordered pursuant to Art. 11 of Law no. 146/2006, as it is superior to the economic advantage achieved as a result of the commission of the offense, the party argued for the necessity of compliance with the principles of legality, foreseeability of the criminal sanction, and the prohibition of analogy *in malam partem*. In this sense, it referenced both the jurisprudence of legitimacy that excluded the applicability of the forfeiture of which in Art. 11 of Law no. 146/2006 with a "patteggiamento" judgment, on the observation that an express regulatory provision was necessary, and the existence of an interpretative contrast also signaled by the Office of the Massimario of the Court of Cassation, which would exclude the foreseeability of the ablative measure.

Even following the reform ordered with Legislative Decree no. 150 of 2022, with the widening of the limits of extra-penal effectiveness of the "patteggiamento" judgment, the clause of equivalence to the judgment of conviction would be referred to the consequences that derive from a judgment that has applied a penalty. Moreover, the legislator, when it intended to allow the application of forfeiture also in the case of definition of the judgment with a "patteggiamento" judgment, expressly provided for it—for example, in the hypotheses of which in Articles 322-ter of the Penal Code, 640-quater of the Penal Code, 600-septies of the Penal Code, 648-quater of the Penal Code, 2641 of the Civil Code, 1, paragraph 143, of Law no. 244 of December 24, 2007, containing "Provisions for the formation of the annual and multi-year State budget (2008 Financial Law)," 12, paragraph 4-ter, of Legislative Decree no. 286 of July 25, 1998, containing "Consolidated text of provisions concerning the discipline of immigration and rules on the condition of the foreigner"—. From a systematic point of view, therefore, "the equivalence clause contained in Art. 445, paragraph 1-bis, of the Code of Criminal Procedure is not considered sufficient by the legislator to establish the equivalence between the judgment of conviction and that of 'patteggiamento' for the specific purpose of forfeiture."

In this sense, in fact, the nature of the "patteggiamento" judgment is highlighted, lacking a positive assessment of guilt, and the necessity of a constitutionally compliant interpretation of Art. 11 of Law no. 146/2006 that allows forfeiture only at the outcome of the pronouncement of a judgment of conviction and not of a "patteggiamento" judgment. The interpretation that allowed forfeiture also in such a hypothesis, in fact, would incur a lack of foreseeability: if it were considered "living law," a declaration of constitutional illegitimacy would be needed for contrast with the principles of reservation of law, specificity, and foreseeability.

Legal Considerations (Considerato in diritto)

4.– With the orders indicated in the heading (Reg. Ord. no. 143 and no. 144 of 2025), of almost identical content, the Preliminary Hearing Judge of the Court of Arezzo, acting as the enforcement judge, raised, with reference to Articles 25, second paragraph, and 117, first paragraph, of the Constitution, in relation to Art. 7 ECHR, questions of constitutional legitimacy of Art. 11 of Law no. 146/2006, in the part in which it provides for the application of the forfeiture of sums of money, assets, or other utilities of which the offender has availability, including through an intermediary physical or legal person, for a value corresponding to the product, profit, or price of the crime, with the judgment of conviction "and not also following a judgment of application of penalty upon request of the parties pursuant to Art. 444 et seq. of the Code of Criminal Procedure."

4.1.– Regarding the facts of the case, the referring judge states that they are called to decide, in the seat of an execution incident, regarding the request for revocation of the forfeiture by equivalent ordered with Judgment no. 340 of 2017, issued pursuant to Art. 444 of the Code of Criminal Procedure by the Preliminary Hearing Judge of the Court of Arezzo against F.B. (Reg. Ord. no. 143 of 2025) and M.F. (Reg. Ord. no. 144 of 2025). The "patteggiamento" judgment became irrevocable on February 27, 2019, when the Court of Cassation, with Judgment no. 16100 of 2019, rejected the appeals proposed against the forfeiture ordered with the cited judgment.

4.2.– Regarding the point of relevance of the questions, the referring judge affirms that the forfeiture, concerning in both cases sums of money, movable or immovable assets not directly deriving from the contested crimes, was ordered by equivalent and that in case of acceptance of the questions one should provide for the restitution of what was forfeited.

Nor would the formation of the final judgment on the ordered ablative measures be an obstacle to the relevance of the questions, in consideration of the process of its tendency to flexibilization in case of favorable jurisprudential change, which, in the species, would be identifiable in the reconsideration regarding the nature, no longer afflictive, but restorative, of the forfeiture by equivalent.

Therefore, the referring judge maintains, it would not be a matter of "affirming whether a subsequent jurisprudential change can overturn the final judgment," but of verifying whether the forfeiture provided for by Art. 11 of Law no. 146/2006 is a penalty or not and whether the rule respects the canon of foreseeability and legality, even in the supranational dimension. Such verification would imply an "assessment on the nature of the judgment of application of penalty."

4.3.– As for the non-manifest groundlessness of the questions, the referring judge retraces first of all the evolution of the jurisprudence of legitimacy formed on the forfeiture by equivalent, which, after having recognized its sanctionatory nature, has recently affirmed, instead, its restorative nature when it does not subtract more than what was achieved by the illicit. He then considers it indispensable to "verify whether forfeiture by equivalent was a foreseeable measure in its application for those who defined the position pursuant to Art. 444 of the Code of Criminal Procedure."

In particular, he affirms, "in the face of cases that expressly provide for the application of forfeiture by equivalent in the presence of a judgment of application of penalty, it becomes complex to argue that the equivalence generically sanctioned by Art. 444 of the Code of Criminal Procedure can automatically re-expand into all those hypotheses of forfeiture of value in which—even if provided, as in Art. 11 L. 146/2006—it is positivized only in the face of a judgment of conviction."

Having premised this, in the presence of an uncertain regulatory and jurisprudential framework on the nature of penalty of the forfeiture of value and on the nature of the "patteggiamento" judgment, the referring judge believes that Art. 11 of Law no. 146/2006 "does not fully respect the canons of accessibility and foreseeability, as declined by Art. 7 ECHR—interpreted by the jurisprudence of the ECtHR—being able to integrate a violation of Articles 25 and 117 of the Constitution."

5.– The President of the Council of Ministers intervened in both judgments, asking, with two distinct and substantially overlapping acts, that the questions of constitutional legitimacy described above be declared inadmissible or in any case unfounded.

M.F. also entered an appearance in the judgment (party in the judgment registered under no. 144 of the 2025 Reg. Ord.), concluding for the non-foundedness or for the foundedness of the questions of constitutional legitimacy, in the senses illustrated in point 3.

6.– Preliminarily, the joinder of the judgments must be ordered so that they are decided with a single judgment, the relative questions of constitutional legitimacy having as their object the same provision, proposing the same censures and evoking coinciding parameters (among many, judgments no. 128 of 2025, no. 171 of 2024 and no. 220 of 2023).

7.– One must then move from the formal exceptions proposed by the State Attorney.

The exception of inadmissibility for lack of clarity of the *petitum*, first of all, is formulated in the sense that, while in the operative part of the orders one doubts the constitutional legitimacy of Art. 11 of Law no. 146/2006, "in the part in which it provides for the application of forfeiture [...] with the judgment of conviction and not also following a judgment of application [of the] penalty upon request of the parties pursuant to Art. 444 et seq. of the Code of Criminal Procedure," in their reasoning the doubt of constitutional legitimacy would seem instead founded precisely on the applicability of forfeiture by equivalent even following the issuance of a "patteggiamento" judgment.

The exception is founded, since the referring judge's reasoning regarding the non-manifest groundlessness of the questions is calibrated on the doubt that the forfeiture by equivalent of which in Art. 11 of Law no. 146/2006 can be ordered even in the seat of a "patteggiamento" judgment; to the contrary, in the *petitum* the doubt of constitutional legitimacy invests such article "in the part in which it provides for the application of forfeiture [...] with the judgment of conviction and not also following a judgment of application of penalty upon request of the parties pursuant to Art. 444 et seq. of the Code of Criminal Procedure" (emphasis added).

In other terms: in both orders the request of the referring judge would seem directed to obtain an additive judgment of acceptance that allows the application of the "transnational" forfeiture by equivalent even with the "patteggiamento" judgment.

The *petitum*, furthermore, reaches the end of a non-linear motivational trend, since the referral orders, after a diffuse exposition of the question of the legal nature of the forfeiture by equivalent, define it irrelevant for the decision (page 11), since the theme of the foreseeability of the application of such forfeiture in the seat of "patteggiamento" would be central instead.

Moreover, the ambiguity of the *petitum* appears corroborated by the non-casual conclusions of the party, which asked to declare the non-foundedness of the questions where they solicit a pronouncement that allows the application of forfeiture by equivalent with the "patteggiamento" judgment and, vice-versa, their foundedness "if interpreted in the sense that it allows the application of forfeiture by equivalent even in the case of definition of the proceeding with judgment of application of the penalty upon request of the parties." The party takes care to specify that said requests are linked by a relationship of subordination, but it is a perspective of its own, since in the referral orders there is no trace of questions posed "in the main" and of questions posed "in a subordinate way."

Having premised this, already the obscurity and the uncertainty of the *petitum*, truly very marked, impose the declaration of inadmissibility of the questions (in this sense, judgments no. 143 of 2018, no. 102 and no. 32 of 2016 and no. 247 of 2015; orders no. 261 of 2020, no. 250 of 2019 and no. 65 of 2018).

8.– A further profile of inadmissibility, which for completeness it is good to examine, concerns the exhaustion, by virtue of the final judgment formed, of the relations deduced in the judgments *a quibus*.

In particular, the jurisprudence of this Court has as a rule declared the inadmissibility, for lack of relevance, of questions raised by the criminal execution judge who contests a rule applied in the previous cognition judgment.

In this regard, this Court has first of all affirmed that "it is not permitted to raise in the enforcement proceeding an incident of constitutional legitimacy concerning a rule applied in the cognition judgment (the question should have been, in fact, proposed in the ambit of the latter). The only exception is represented by the hypothesis in which it comes into discussion, with reference to Art. 117, first paragraph, of the Constitution, the necessity to conform to a judgment of the European Court of Human Rights in substantive matters, in a case that does not require the reopening of the process, but can find remedy directly in the enforcement seat (judgment no. 210 of 2013)" (judgment no. 100 of 2015). A hypothesis that does not recur in the cases today under examination.

It was also specified that "[t]he pronouncement of this Court no. 210 of 2013 introduced a well-delimited exception to the principle, constantly affirmed and still in force today, according to which it is not permitted to the execution judge to challenge primary provisions that have already been applied, definitively, in the cognition phase (judgment no. 64 of 1965; subsequently, judgments no. 100 of 2015 and no. 210 of 2013). With every evidence, this principle, which declines in the present case the requirement of relevance proper to every incidental question of constitutional legitimacy, precludes, in the seat of criminal execution, from doubting the conformity to the Constitution of the precept on the basis of which the offender was convicted and of the penalty that was consequently imposed. Similar profiles are in fact extraneous to the object of the execution proceeding, which is aimed at the execution of a measure and certainly not at the verification of the constitutional legitimacy of the rules on the basis of which the title was formed and with respect to which the defendant has already had the faculty to challenge the illegitimacy in the cognition process" (judgment no. 57 of 2016; analogously, judgment no. 147 of 2021).

8.1.– Having premised this, the constitutional jurisprudence has identified the hypotheses of bending of the intangibility of the final judgment, recognizing them in the face of supervening events concerning the punishability and the sanctionatory treatment of the offender.

After the first recognition of such bending operated with the cited judgment no. 210 of 2013, in relation to the supervening conventional illegality of the penalty consequent to the judgment of the ECtHR, grand chamber, September 17, 2009, Scoppola v. Italy (no. 2), which determined the modification of the final judgments requested by the convicted persons who had not proposed appeal to the ECtHR and the possibility to redetermine the penalty of life imprisonment in thirty years of imprisonment, further hypotheses were subsequently identified by this Court in order to hypotheses of constitutional illegitimacy or supervening conventional illegality of the penalty. Right as affirmed with judgment no. 147 of 2021 (point 13 of the Legal Considerations) with particular reference to the problematic—which interests us here—of the promotability of the incident of constitutional legitimacy in the seat of criminal execution, "[i]f [...] in general terms it is precluded to the criminal execution judge to raise questions of constitutional legitimacy of the rules applied by the cognition judge, however this is possible by effect of a constitutionally relevant supervenience—which is in a paradigmatic way a judgment that activates the conformative obligation of which in Art. 46 ECHR—which has determined an alteration of the sequence between cognition and execution, in default of which the intervention 'backwards' of the execution judge would have no justification at all." So much happened in the case of judgment no. 68 of 2021– which, in acceptance of questions raised in the course of an execution incident, declared the constitutional illegitimacy, for violation of Art. 3 of the Constitution, of Art. 30, fourth paragraph, of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), as interpreted in the sense that the provision does not apply in relation to the accessory administrative sanction of the revocation of the driving license, ordered with irrevocable judgment pursuant to Art. 222, paragraph 2, of Legislative Decree no. 285 of April 30, 1992 (New Highway Code). In this case the Court held that the principle of constitutional legality of the penalty (and of "conventionally criminal" administrative sanctions) prevailed over the needs of certainty and stability of legal relations, at the protection of which the institution of the final judgment is placed.

There was thus determined an evolution of constitutional jurisprudence which is also in harmony with the interpretative address experienced by that of legitimacy, which, even in United Sections, recognized the bending of the final judgment on the penalty, not on the affirmation of responsibility, and the connected power of the execution judge to redetermine the penalty crystallized in a definitive judgment of conviction (on such address, judgments no. 208 of 2024, point 4.1.3. of the Legal Considerations, no. 2 of 2022, point 5.1.1. of the Legal Considerations, no. 68 of 2021, point 2.2. of the Legal Considerations, and no. 210 of 2013, point 7.3. of the Legal Considerations).

8.2.– This premised, it must be observed that in the case submitted to the scrutiny of this Court the forfeiture (even) by equivalent was ordered with the "patteggiamento" judgment and became irrevocable following the rejection of the appeals for cassation pronounced with the judgment of the Court of Cassation, second criminal section, no. 16100 of 2019, which expressly dealt with the denounced illegality of the forfeiture.

The referring judge, in both hypotheses object of the referral orders, is an execution judge who, in the seat of a request for revocation of the forfeiture, raises questions of constitutional legitimacy of a rule that has already been applied, definitively, in the cognition judgment, nor do hypotheses of illegality of the penalty occur susceptible of determining a "bending of the intangibility of the final judgment" (judgments no. 208 of 2024, no. 147 of 2021 and no. 210 of 2013).

8.3.– The evidenced profiles of inadmissibility result as absorbing with respect to the further formal exceptions formulated by the State Attorney.

for these reasons

THE CONSTITUTIONAL COURT

having joined the judgments,

declares inadmissible the questions of constitutional legitimacy of Art. 11 of Law no. 146 of March 16, 2006 (Ratification and implementation of the United Nations Convention and Protocols against Transnational Organized Crime, adopted by the General Assembly on November 15, 2000, and May 31, 2001), raised, with reference to Articles 25, second paragraph, and 117, first paragraph, of the Constitution, in relation to Art. 7 of the European Convention on Human Rights, by the Preliminary Hearing Judge of the Ordinary Court of Arezzo, acting as the execution judge, with the orders indicated in the heading.

So decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, March 24, 2026.

Signed:

Giovanni AMOROSO, President

Massimo LUCIANI, Redactor

Valeria EMMA, Chancellor

Deposited in the Chancellery July 13, 2026

 

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