JUDGMENT NO. 130

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, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in proceedings concerning the constitutionality of Article 2 of Legislative Decree No. 150 of October 10, 2022 (Implementation of Law No. 134 of September 27, 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift conclusion of judicial proceedings), and of Article 624-bis of the Criminal Code, brought by the Ordinary Court of Brescia, First Criminal Section, sitting as a single judge, in the criminal proceedings against M. C., by order of November 26, 2025, registered under No. 33 of the 2026 register of orders and published in the Official Gazette of the Republic No. 10, 1st special series, for the year 2026.

Having regard to the appearance of M. C., as well as the intervention of the President of the Council of Ministers;

Having heard at the public hearing of June 24, 2026, Judge Rapporteur Roberto Nicola Cassinelli;

Having heard counsel Adriano Spinelli for M. C., and State Counsel Domenico Maimone for the President of the Council of Ministers;

Having deliberated in chambers on June 24, 2026.

Ritenuto in fatto [Summary of the Facts]

1.– By order of November 26, 2025, registered under No. 33 of the 2026 register of orders, the Ordinary Court of Brescia, First Criminal Section, sitting as a single judge, raised questions as to the constitutional legitimacy, with reference to Articles 3 and 27, third paragraph, of the Constitution, of Article 2 of Legislative Decree No. 150 of October 10, 2022 (Implementation of Law No. 134 of September 27, 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift conclusion of judicial proceedings), to the extent that, in modifying the procedural requirements for certain offenses, it failed to introduce prosecution upon a complaint (querela) for the offense set forth in Article 624-bis of the Criminal Code (Domestic theft and robbery-theft [furto in abitazione e furto con strappo]), as well as of Article 624-bis, first paragraph, of the Criminal Code itself, to the extent that it does not provide for a reduction of the penalty prescribed therein when, due to the nature, species, means, modalities, or circumstances of the action, or due to the particular tenuity of the damage or danger, the offense is of a minor entity.

1.1.– The referring court states that it is called upon to adjudicate six counts of domestic theft, in some cases aggravated, brought against M. C. in relation to acts committed within the territory of the Province of Brescia over a period of three months.

It reports, therefore, that in relation to one of the contested conducts – perpetrated by the defendant by entering the changing room of a supermarket and stealing the sum of fifty euros from a handbag placed in a locker, after breaking into the latter – defense counsel provided evidence of having sent a cashier's check to the victim of the crime.

2.– From this latter circumstance, the referring court derives the relevance of the first question raised.

It observes, in fact, that the offer of compensation would abstractly fall within the scope of Article 162-ter, first paragraph, of the Criminal Code, pursuant to which «[i]n cases of offenses prosecutable upon a complaint subject to remission, the court shall declare the offense extinguished, having heard the parties and the victim, when the defendant has fully repaired, within the maximum deadline of the declaration of the opening of the first-instance trial, the damage caused by the offense, through restitution or compensation, and has eliminated, where possible, the harmful or dangerous consequences of the offense».

On this basis, the Court of Brescia argues that «the procedural regime of the offense in question constitutes the sole obstacle to the evaluation [...] regarding the adequacy of the compensation, for the purposes of a possible declaration of extinction».

Furthermore, in the referring court's opinion, the relevance of the question derives from the fact that, in relation to another contested conduct, the victim allegedly «made a mere oral complaint», without expressing any intent regarding the punishment of the offender; consequently, with the failure of the ex officio prosecution of the offense, the proceedings should be deemed extinguished pro parte, as the criminal action ought not to have been initiated.

2.1.– As to the non-manifest lack of foundation of the first question, the referring court first cites Judgment No. 9 of 2025 of this Court, concerning the procedural regime of Article 605 of the Criminal Code when the offense is committed to the detriment of a spouse or a no longer cohabiting spouse, asserting that «[o]vercoming the admissibility threshold in the aforementioned case, which is substantially analogous to the one at bar, suffices to consider the question not manifestly unfounded».

In any event, it notes that, although the choice regarding the procedural conditions of offenses falls within the discretion of the legislature, the retention of ex officio prosecution for the crime of domestic theft exceeds the limit of manifest unreasonableness, thereby conflicting with Article 3 of the Constitution; this is particularly evident when compared with the offenses of trespass and simple theft, which are prosecutable upon a complaint and which «form the complex crime referred to in Article 624-bis of the Criminal Code» and, therefore, «cannot fail to constitute the principal tertia comparationis» for the purposes of the corresponding assessment.

Moreover, the referring court observes, the recognition of prosecution upon a complaint for domestic theft would not be precluded by requirements connected to compliance with international conventions (as highlighted by this Court for the offense referred to in Article 605 of the Criminal Code, namely kidnapping committed to the detriment of a spouse, pursuant to the aforementioned Judgment No. 9 of 2025); nor could reference be made to the differentiating criterion indicated in the explanatory report to Legislative Decree No. 150 of 2022, which refers to the public-law nature or otherwise of the legal interest protected, since the interest at stake here is a private legal interest, such as individual property.

Finally, there would be a «clear disparity between the procedural regime of domestic theft and that of other offenses of comparable gravity», including «multiple aggravated theft», which has a «statutory penalty range [...] almost analogous to that of the case at hand» and is prosecutable upon a complaint.

3.– As to the second question, it is relevant because the defendant is also charged with recidivism pursuant to Article 99, fourth paragraph, of the Criminal Code; therefore, in the referring court's opinion, if the mitigated hypothesis were introduced, the judge would be permitted to proceed with the balancing assessment, «with the consequent effects in bonam partem».

3.1.– Regarding the non-manifest lack of foundation of the second question, the a quo judge emphasizes that the phrase «private dwelling» contained in the incriminatory provision ends up encompassing «an absolutely heterogeneous series of hypotheses», in relation to which it would be unreasonable, and thus in conflict with Article 3 of the Constitution, not to permit a modulation of the sentencing treatment.

In this sense, it recalls previous decisions by which this Court has introduced a mitigated hypothesis in the criminal offenses referred to in Articles 630 of the Criminal Code (Judgment No. 68 of 2012), 167, first paragraph, of the Military Criminal Code in Time of Peace (Judgment No. 244 of 2022), 629 (Judgment No. 120 of 2023), 628, the latter indicated with particular emphasis regarding its «particular affinity» with theft (Judgment No. 86 of 2024), 600-ter (Judgment No. 91 of 2024), and 583-quinquies of the Criminal Code (Judgment No. 83 of 2025), recognizing the necessity of providing a «safety valve» that allows the judge to calibrate the penalty in concrete terms, ensuring its proportionality in compliance with the re-educational purpose set forth in Article 27, third paragraph, of the Constitution.

4.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, arguing, first of all, the inadmissibility of the first question.

The state defense counsel observes, in particular, that the referring court failed to clarify the reasons why a potential declaration of unconstitutionality of the challenged provision would entail the immediate improsecutability of the criminal action, given that there is no record of any of the victims having remitted the complaint previously filed; nor would the fact that one of the victims filed a mere oral complaint be relevant, as it would in any case have been transcribed by the judicial police in the investigative report.

In any event, the factual scenario submitted to this Court's judgment is not fully described; the referring court, in particular, omitted to specify whether the payment of a cashier's check made by the defendant to one of the victims concerned the entire amount stolen, which is a necessary condition for the operation of the extinction mechanism set forth in Article 162-ter of the Criminal Code.

4.1.– Both questions, in any case, are unfounded.

Notwithstanding the broad discretion enjoyed by the legislature in establishing the procedural conditions of an offense and the related sentencing treatment, there would be no room, first of all, for a review of the former under the profile of reasonableness, within the terms put forward by the referring court; the choice of the procedural regime, in fact, is not anchored to the gravity of the offense but may also serve different functions, such as the need to lighten the judicial workload in relation to criminal offenses of significant statistical incidence.

Furthermore, the two offenses invoked by the referring court as tertia comparationis could not be considered as «mere addends» to the challenged provision, which is instead characterized by its own peculiar disvalue, resulting from the simultaneous infringement of two legal interests—property and personal intimacy—connected to one another.

With specific reference to the second question, the state defense counsel observes that it was the subject of this Court's recent Ruling No. 193 of 2025, which held it to be unfounded on the basis of arguments applicable to the present case.

5.– The defendant in the main proceedings entered an appearance, putting forward considerations supporting the referring court's arguments.

The defense counsel for the party, in particular, expressed the hope that this Court would reconsider the grounds provided in support of the aforementioned Judgment No. 193 of 2025, highlighting that the crime of domestic theft can also be consummated in «places and contexts belonging to dimensions different from strictly residential ones», which, as such, «cannot be confused and superimposed upon the strict residential and appurtenant concept», thereby rendering a less severe penal response necessary than that provided by the legislature.

Considerato in diritto [Reasons of Law]

6.– The Court of Brescia, First Criminal Section, sitting as a single judge, by the order indicated in the heading, raised questions as to the constitutional legitimacy, with reference to Articles 3 and 27, third paragraph, of the Constitution, of Article 2 of Legislative Decree No. 150 of 2022, to the extent that it did not introduce prosecution upon a complaint for the offense set forth in Article 624-bis of the Criminal Code (Domestic theft and robbery-theft), as well as of Article 624-bis, first paragraph, of the Criminal Code itself, to the extent that it does not provide for a reduction of the penalty when, due to the nature, species, means, modalities, or circumstances of the action, or due to the particular tenuity of the damage or danger, the offense is of a minor entity.

7.– Regarding the first question, the objection of inadmissibility due to lack of relevance, raised by the President of the Council of Ministers on the premise that the referring court failed to indicate the reasons why the introduction of prosecution upon a complaint for domestic theft would entail the immediate improsecutability of the criminal action—since it is not recorded that any of the victims remitted the complaint previously filed, nor is the extinction mechanism of the offense provided by Article 162-ter of the Criminal Code prima facie applicable to one of the contested facts, as it has not been demonstrated that the cashier's check paid by the defendant to the victim resulted in full reparation of the damage—must first be examined.

7.1.– The objection is unfounded.

As this Court has long and repeatedly held, the statement of reasons on relevance formulated by the a quo judge «is subject to a merely external review», which stops «at the threshold of non-implausibility» both as regards the applicability of the rule in the main proceedings and as regards the possibility or otherwise of concluding «the latter independently of the solution to the raised question» (see, inter alia, Judgments No. 72 of 2026, No. 137 of 2025, and No. 192 of 2022).

With reference to two of the conducts charged in the main proceedings, the referral order accounts for the existence of significant elements regarding the possibility of concluding the proceedings in terms directly dependent on the upholding of the raised question, representing specific circumstances—such as the filing of a mere oral complaint or the payment of a sum of money for restorative purposes—which appear intrinsically capable of imparting decisive relevance to the introduction of prosecution upon a complaint for the contested offense.

Said order, therefore, passes the aforementioned external review through a non-implausible reasoning of the logical path followed and of the reasons why the referring court asserts that it must apply the challenged provision in the main proceedings (thus, for a similar case, Judgment No. 110 of 2026).

8.– This having been established, the question is unfounded.

8.1.– According to the established case law of the constitutional jurisprudence, the legislature enjoys wide margins of discretion in choices concerning the punishability regime of offenses, which can be reviewed by this Court only within the limits of manifest unreasonableness (ex plurimis, Judgments No. 190 of 2020, No. 155, and No. 40 of 2019). This standard also applies to choices regarding the procedural regime of individual offenses (Judgments No. 248 of 2020 and No. 236 of 2016).

According to the referring court, the unreasonableness of the challenged provision stems from the resulting disparity in the treatment of domestic theft compared to the offenses of simple theft and trespass, which make up its elements, or when compared between the first criminal hypothesis and other unspecified ones of «multiple aggravated theft», highlighting that for all the hypotheses assumed as tertia comparationis, prosecution upon a complaint is provided.

8.2.– These arguments cannot be shared.

This Court has specified, also recently, that «the procedural regime—upon complaint or ex officio—presupposes delicate and often very complex balances of interests»; that «the choice regarding such regime must not be "necessarily connected to the greater or lesser gravity of the offense, as revealed by the measure of the penalty [...], since it may also be correlated to the particularity of the case and of the legal interest offended by the criminal conduct”»; and finally, that «the option for prosecution upon complaint does not inevitably derive from the "available character of the right protected by the criminal rule” and the "merely private nature of the offended interest”» (Judgment No. 96 of 2026, in addition to the precedents cited therein).

In other words, the reasonableness of the legislative choice regarding the procedural condition of an offense is not to be assessed, as the referring court assumes, exclusively on the basis of the gravity of the offense itself or the nature of the interests protected by the incriminatory rule.

Now, in the present case, from reading the explanatory report to Legislative Decree No. 150 of 2022, it emerges that the legislature extended prosecution upon a complaint to «offenses of no particular gravity, enacted for the protection of individual, personal, and property interests», with a view to systemic efficiency, «taking into account the necessary requirements for the protection of the victim and the community, as well as the public interests involved in the offense», but also with the aim of reducing the current judicial workload which inevitably affects the duration of proceedings, the State currently being «compelled [...] to conduct criminal proceedings that could be concluded prematurely through compensation for the damage, full satisfaction of the victim, and extinction of the offense».

It follows that the challenged provision favors the possible early conclusion of proceedings for theft—whether simple or, in some cases, aggravated—so as to lighten the burdensome judicial workload associated with this category; the legislature itself, however, deemed this objective to be recessive compared to the need to maintain ex officio prosecution for domestic theft, the prosecutability of which follows from the recognition of «the particular gravity of the act of one who, in order to commit theft, enters another's dwelling, or another place of private residence or its appurtenances, and the special subjective dangerousness manifested by the author of such an offense», characteristics which, moreover, this Court has already deemed suitable to justify its penal treatment (Judgment No. 216 of 2019, cited by Judgment No. 193 of 2025).

9.– The second question, concerning the failure to provide for a mitigated hypothesis of the crime of domestic theft, is identical to the one decided by this Court with Judgment No. 193 of 2025, filed on December 22, 2025, and with the subsequent Order No. 105 of 2026, filed on June 11, 2026, both of which post-date the referral order.

9.1.– The first of the aforementioned decisions, in particular, declared the question unfounded, premising that the legislature enjoys wide discretion in defining its criminal policy, particularly in determining sentencing treatment, the exercise of which is reviewable only under the profile of reasonableness; on this basis, it was affirmed that the adoption of a particularly rigorous treatment toward anyone who enters another's dwelling, or another place of private residence or its appurtenances, in order to commit a theft is not unreasonable, as it is a particularly serious act capable of manifesting the special subjective dangerousness of its author.

Nor, given this premise, are there reasons for the introduction of a «safety valve» to adapt the penalty to the act: domestic theft, in fact, does not encompass within itself hypotheses so diversified as to make the provision of a mitigated hypothesis appropriate, with particular reference to the personalistic profile of the injury inflicted upon the victim of the crime, which is «incapable of quantitative gradation, given that the home, as a personal space, is either violated or not, and therefore a "minor” entry into another's dwelling is inconceivable even on a logical level» (Judgment No. 117 of 2021, cited in these terms by Judgment No. 193 of 2025).

9.2.– The referral order provides no new arguments compared to those already examined in the aforementioned judgment (and reaffirmed in the subsequent order) that would warrant a different conclusion.

The question, therefore, must be declared manifestly unfounded (ex plurimis, Orders No. 195 of 2025, No. 97 and No. 78 of 2024, and No. 214 of 2023).

on these grounds

THE CONSTITUTIONAL COURT

1) Declares unfounded the question of constitutional legitimacy of Article 2 of Legislative Decree No. 150 of October 10, 2022 (Implementation of Law No. 134 of September 27, 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as on restorative justice and provisions for the swift conclusion of judicial proceedings), raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Brescia, First Criminal Section, sitting as a single judge, by the order indicated in the heading;

2) Declares the manifest lack of foundation of the question of constitutional legitimacy of Article 624-bis, first paragraph, of the Criminal Code, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, by the Ordinary Court of Brescia, First Criminal Section, sitting as a single judge, by the order indicated in the heading.

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

Signed:

Giovanni AMOROSO, President

Roberto Nicola CASSINELLI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on July 16, 2026

 

The anonymized version conforms in text to the original