JUDGMENT NO. 132

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 delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Articles 37, 38, and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, brought by the Court of Cassation, First Criminal Section, in the criminal proceedings against G. S., by order of October 21, 2025, registered under no. 239 of the 2025 register of orders and published in the Official Gazette of the Republic no. 51, first special series, of the year 2025.

Having regard to the entries of appearance of S. L., N. C., and D. C., and of D. C., as well as the intervention briefs of P. D.A. and the President of the Council of Ministers;

having heard in the public hearing of May 20, 2026, Judge Rapporteur Filippo Patroni Griffi;

having heard counsels Tiziano Saporito for S. L. and the other appearing parties, Gregorio Viscomi for D. C., as well as State Counsel Salvatore Faraci for the President of the Council of Ministers;

having deliberated in the chambers on May 20, 2026.

Ritenuto in fatto (Proceedings in Fact)

1.– By order of October 21, 2025, registered under no. 239 of the 2025 register of orders, the Court of Cassation, First Criminal Section, raised questions as to the constitutional legitimacy of Articles 37, 38, and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, with reference to Articles 111, second paragraph, and 117, first paragraph, of the Constitution—the latter in relation to Article 6, paragraph 1, of the European Convention on Human Rights—insofar as they do not provide that a crime victim who has filed an objection to a request for dismissal (archiviazione) has standing to challenge (ricusare) the judge for preliminary investigations in connection with the hearing scheduled pursuant to Article 409, paragraph 2, of the same Code.

2.– The referring panel states that the Court of Appeal of Catanzaro, by order issued on June 13, 2025, declared inadmissible the declaration of challenge (ricusazione) filed by the crime victims against the judge for preliminary investigations within the proceedings concerning the request for dismissal of the case against Deputy Inspector G. S., who is under investigation for the murder of their family member F. C. The Court of Appeal found a ground of incompatibility arising from acts performed in a separate proceeding by the same physical judge; specifically, the issuance against certain members of the C. family of a custodial precautionary measure order containing assessments that were prejudicial to the decision on the request for dismissal of the proceedings against G. S.

More specifically, it is stated that the two proceedings originate from the same event, in which a law enforcement officer (Deputy Inspector G. S.), who intervened to stop and identify F. C., was attacked and wounded by some family members of the latter and fired his service weapon, killing the man he intended to stop. The judge for preliminary investigations who, in a separate proceeding, had ordered a precautionary measure against the family members of the deceased (for an offense not specified in the referring order), describing their conduct as particularly violent and brutal, and such as to force the deputy inspector to defend himself, is the very same physical judge designated to rule on the request made by the public prosecutor to dismiss the proceedings against the aforementioned deputy inspector on the grounds that he acted in self-defense.

The family members of the deceased, in their capacity as crime victims, filed an objection against the request for dismissal pursuant to Article 410 of the Code of Criminal Procedure and, upon learning the identity of the judge who had scheduled the in-chambers hearing, filed a declaration of challenge.

By the order contested before the Court of Cassation, the Court of Appeal of Catanzaro declared it inadmissible, on the grounds that the crime victim, according to established case law of the court of legitimacy, lacks standing to file a declaration of challenge pursuant to Article 37 of the Code of Criminal Procedure, as they are not a "procedural party” (parte processuale).

2.1.– Regarding the relevance of the issues, the referring judge maintains that the lack of standing is the sole ground for declaring inadmissible the declaration of challenge filed by the crime victims, since the decision concerning the standing of the proponents is preliminary to any further examination and, in fact, prevented the Court of Appeal from verifying both the admissibility of such declaration from a procedural standpoint and its merits.

On another front, it is specified that, according to established constitutional case law (reference is made to Judgment No. 129 of 2025), "in the presence of an established body of case law, the court a quo has the faculty to adopt such interpretation as ‘living law’ (diritto vivente) and to use it as the interpretive premise upon which to request compliance control against constitutional parameters, even solely for the purposes of the relevance of the issue.” In the present case—observes the referring judge—the consistent case law of the Court of Cassation regarding the exceptional nature of the rule set forth in Article 37 of the Code of Criminal Procedure and its non-applicability to the crime victim constitutes living law, thereby permitting a review of its compliance with constitutional principles.

2.2.– Regarding the non-manifest unfoundedness, the court a quo starts from the twofold premise—derived from constitutional jurisprudence—whereby, on the one hand, the institution of challenge (ricusazione), together with those of incompatibility and abstention, is established to guarantee the principle of an impartial and third-party judge, safeguarded by Article 111, second paragraph, of the Constitution and Article 6 of the ECHR (reference is made to Judgment No. 179 of 2024); on the other hand, this principle must be respected also in the dismissal procedure (citing Judgment No. 93 of 2024).

In the opinion of the referring judge, this principle is violated by the failure to provide, in the phase following the filing of an objection to a request for dismissal, for the crime victim’s standing to request verification of the judge’s impartiality and independence, owing to their failure to acquire the status of a "party” during the preliminary investigation phase.

This is because the crime victim, although not holding the qualification of a "parte” in the technical sense, is recognized by the procedural system as holding a series of powers and rights contemplated, for example, by Articles 90 et seq. of the Code of Criminal Procedure—which were significantly expanded by Legislative Decree No. 212 of December 15, 2015 (Implementation of Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012, establishing minimum standards on the rights, support, and protection of victims of crime, and replacing Framework Decision 2001/220/JHA), as well as 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 trial, as well as regarding restorative justice and provisions for the swift conclusion of judicial proceedings)—both in terms of the right to be informed regarding specific procedural events, and in terms of the possibility of providing procedural impetus through the filing of complaints and criminal charges (denunce e querele), through dialogue with the public prosecutor and prompting their intervention, and in terms of the right to be involved in alternative procedures for concluding proceedings, such as probation (messa alla prova) and the application of restorative justice.

Among these rights is precisely that of filing an objection against the request for dismissal submitted by the public prosecutor, pursuant to Article 410 of the Code of Criminal Procedure. On this point, the referring judge observes that the exercise of this right requires the judge, if the objection is not deemed inadmissible, to schedule an in-chambers hearing and establish an adversarial proceeding, in which the objector is called to participate, as provided by Article 409, paragraph 2, of the Code of Criminal Procedure. Consequently, the legal system recognizes that the crime victim, in offenses committed to their detriment, holds an interest in the exercise of criminal action worthy of protection, as they can argue before a judge their reasons regarding the necessity of continuing the preliminary investigations and conducting the criminal trial. If the objection filed by the crime victim initiates a procedural phase functional to the protection of an interest of their own, their lack of standing to request a review of the impartiality of the judge called upon to perform such judicial activity would violate Article 111, second paragraph, of the Constitution; indeed, this provision mandates that "[e]very trial” shall unfold "before an impartial and third-party judge,” without making distinctions regarding the nature of the trial itself and the subjects involved therein. It follows that it would be unreasonable for the legal system to grant a procedural subject a right (in this case, that of dialoguing with the judge regarding the admissibility of the request for dismissal of a criminal investigation) while denying them the possibility of verifying whether such judge is third-party and impartial with respect to the interests that they intend to protect through the exercise of that right.

The lack of standing of the crime victim to challenge the judge—in light of conventional jurisprudence according to which "the question of the applicability of Article 6, para. 1, cannot depend on the recognition of the formal status of a ‘party’ under national law”—would also result in a violation of Article 6, paragraph 1, of the ECHR. This is because a crime victim who has exercised a right conferred by the legal system, such as that of opposing a request for dismissal, acting to protect a civil right of their own upon which the outcome of the preliminary investigations is decisive, occupies a position analogous to that of the civil party (parte civile) regarding the right to fair trial guarantees, while the possibility of resorting to the civil court to assert their claim for damages is likewise irrelevant (references are made to the European Court of Human Rights, First Section, judgments of March 18, 2021, Petrella v. Italy; December 7, 2017, Arnoldi v. Italy; April 20, 2006, Patrono and Others v. Italy; as well as Second Section, decision of March 30, 2010, Mihova v. Italy; Third Section, decision of February 24, 2005, Sottani v. Italy).

3.– Appearances were entered, by separate briefs but of identical content, first by S. L. (also in her capacity as parent exercising parental responsibility over the minor J. C.), D. C., and N. C., and subsequently by D. C., who, in their capacity as crime victims in the proceedings concerning the murder of F. C., filed an objection against the request for dismissal and subsequently submitted a declaration of challenge.

The parties adhere to the legal arguments set forth in the referral order and request that the raised questions be upheld, particularly insisting on the unequivocally prejudicial content of the precautionary measure order issued against certain members of the C. family.

The constitutional breach—they argue—stems not from a generic knowledge of the investigative files by the judge, but from the exercise of a specific decision-making activity that entailed an "anticipatory and definitive” assessment on the merits of the res iudicanda within the precautionary measure order. In the latter, indeed, the judge did not limit themselves to evaluating the position of certain members of the C. family, but performed a precise reconstruction of S.’s conduct, repeatedly and dogmatically characterizing it as "self-defense” (legittima difesa). The lethal action was defined as an "extreme action […] overwhelmed by the aggressors,” a "desperate attempt at defense,” and an "extreme act of self-defense.” Such expressions thus crystallize a full and anticipated conviction regarding the non-punibility of the perpetrator of the homicide.

In addition to the issues raised by the court a quo, a violation of Article 3 of the Constitution and of the principle of equality of arms as a corollary of the fair trial safeguarded by Article 111, second paragraph, of the Constitution is also alleged. Indeed, an "unsustainable asymmetry” is perceived between the public prosecutor (who requested the dismissal and therefore has no interest in pursuing the prosecution) and the suspect (who benefits from the request for dismissal), on the one hand, both holding the power to challenge the judge, and, on the other hand, the objecting crime victim, who, despite being the sole subject holding a vital, concrete, and current interest in obtaining an impartial decision to overturn the request for dismissal, lacks the power of challenge.

4.– An appearance was entered by the President of the Council of Ministers, represented and defended by the State Attorney General’s Office (Avvocatura generale dello Stato), which requested that the questions be declared inadmissible or unfounded.

4.1.– In the view of the State’s defense, the questions are inadmissible due to the failure to attempt a constitutionally oriented interpretation of the challenged provisions, under a twofold profile.

On the one hand, the referring judge failed to evaluate whether the interpretation he himself reports as living law truly precludes a different reading of the rule that would resolve the doubt of constitutional legitimacy.

On the other hand, and even more so, the court a quo failed to consider that, unlike the court on the merits, it is not effectively bound by an expression of living law, given that the nomophylactic function assigned by the legal system to the court of legitimacy presupposes and permits the constant updating of legal interpretation in the event of a conflict with the Constitution or ECHR norms, given also the faculty to refer the matter to the United Joint Sections (Sezioni unite) pursuant to Article 618 of the Code of Criminal Procedure.

The Court of Cassation, by ignoring its nomophylactic function, thus submits to this Court’s scrutiny—moreover in the absence of rulings by the United Joint Sections—an interpretation of the living law deemed constitutionally non-compliant. Consequently, the attempt at a constitutionally oriented interpretation is omitted in the absence of a provision expressly precluding the crime victim from filing an application for challenge; which renders the question inadmissible.

4.2.– In the opinion of the State Attorney General’s Office, the questions are in any event unfounded.

For the State’s defense, even though the referring panel noted the regulatory evolution regarding the position of the crime victim compared to the original architecture of the Code of Criminal Procedure—recalling recent legislative amendments—it failed to draw the proper consequences regarding the interpretation concerning the identification of a party in the technical sense within the criminal trial in the present case.

First of all, precisely in light of the evolution of the rights of the crime victim in the criminal trial, the concept of "party” should be evaluated and deduced with reference to a subject’s position within a specific proceeding and therefore the correct statement that the crime victim is not a party in the trial phase (dibattimento) cannot apply statically across the board.

To exclude on this basis that the crime victim, empowered by procedural rules to obtain the scheduling of a hearing and to participate therein, can be classified as a party would be erroneous or, in any event, would not represent an interpretive outcome mandated by the fact that in the trial phase the crime victim cannot be classified as a procedural party.

To support this reasoning, it is observed that if, in all cases where the code uses the term "parties,” it were precluded from referring to the crime victim, the latter would not even have the right to avail themselves of the provision under Article 410-bis of the Code of Criminal Procedure, which regulates the nullity of the dismissal order at least with reference to the provision whereby the reviewing judge notifies the order to the interested parties. Furthermore, and more generally, the crime victim undoubtedly holds the power to appeal pursuant to Article 428, paragraph 2, of the Code of Criminal Procedure, and the relative proceeding is governed by Article 598-bis of the Code of Criminal Procedure, which uses the term "parties” to refer to all subjects involved in the appellate judgment, including the crime victim if it is they who initiated the appeal pursuant to Article 428, paragraph 2, of the Code of Criminal Procedure. Moreover—it is emphasized—all rules governing proceedings before the Court of Cassation always and exclusively refer to parties to indicate the subjects operating before it, and among these there may be the crime victim in cases where they have standing to appeal to the Court of Cassation.

On another front, the State Attorney General’s Office emphasizes how an interpretation of the procedural rule that includes the crime victim in the notion of a party is mandated precisely for the very reasons underlying the non-manifest unfoundedness of the raised questions.

If it is unquestionable that every trial, pursuant to Article 111 of the Constitution, must take place with adversarial proceedings between the parties, this would require classifying as a party all subjects who participate in a proceeding with an essential role in the dynamics of adversarial debate; from this it would follow that it cannot be argued that a party to the proceeding—moreover the one who initiated it—cannot avail themselves of the rules established to ensure the independence of the judge.

Nor could the specialization of the rules on challenge lead to different conclusions, as this in itself must be deemed insufficient to preclude an expansive or even analogical interpretation. This is because the specialization of the rules pertains to the taxative nature of the "cases” provided for challenge, but is not directly relevant to the upstream identification of subjects with standing to file the challenge itself.

Ultimately, the legal system contains a constitutionally compliant solution, which is to be derived from the overall systematic framework of the code regarding the powers and faculties of the crime victim in the criminal proceedings and the phases into which they may be articulated, notwithstanding the graduated variety of powers and faculties of said victim party. Therefore, contrary to what was held by the court a quo, the rules subjected to constitutional legitimacy scrutiny, under the constitutionally oriented interpretation that must dutifully be adopted, do not state at all that the crime victim cannot propose a challenge in the proceedings referred to in Article 410 of the Code of Criminal Procedure.

5.– On January 7, 2026, an intervention brief ad adiuvandum was filed by P. D.A., a crime victim in criminal proceedings other than the principal proceedings, who requested that the questions raised by the referring judge be upheld, sharing his arguments.

5.1.– On April 29, 2026, the intervenor ad adiuvandum P. D.A. filed a memorial, insisting on the admissibility of the intervention and the merits of the raised questions, specifically arguing against the feasibility of the constitutionally oriented reading along the lines indicated by the State Attorney General’s Office.

6.– By Order of this Court No. 81 of 2026, said intervention was declared inadmissible.

Considerato in diritto (Conclusions in Law)

7.– By the order indicated in the heading (ord. reg. no. 239 of 2025), the Court of Cassation, First Criminal Section, raised questions concerning the constitutional legitimacy of Articles 37, 38, and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, insofar as they do not provide that a crime victim who has filed an objection to a request for dismissal has standing to challenge the judge for preliminary investigations in relation to the hearing scheduled pursuant to Article 409, paragraph 2, of the same Code, due to conflict with Articles 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 1, of the ECHR.

8.– The court a quo states that the Court of Appeal of Catanzaro, by order issued on June 13, 2025, declared inadmissible the declaration of challenge filed by the crime victims against the judge for preliminary investigations within the proceedings concerning the request for dismissal of the case against an individual investigated for the murder of their family member. The ground of incompatibility—in their view—arose from acts performed in a separate proceeding by the same physical judge; specifically, the issuance against certain family members of the victim of the aforementioned offense of a precautionary measure order in which assessments prejudicial to the decision on the request for dismissal of the proceedings against the homicide suspect were expressed.

By the order contested before the Court of Cassation, the Court of Appeal of Catanzaro declared the declaration of challenge inadmissible, on the basis of the consideration that, according to established case law of the court of legitimacy, the crime victim lacks standing to file a declaration of challenge pursuant to Article 37 of the Code of Criminal Procedure, as they are not a "procedural party.”

8.1.– In particular, the referring judge alleges the violation of the invoked constitutional parameters inasmuch as the lack of standing of the crime victim to request verification of the judge’s impartiality and independence, due to the absence of party status during the preliminary investigation phase, conflicts with the principle of a fair trial, which mandates for "[e]very trial” that it be conducted "before an impartial and third-party judge,” without making distinctions regarding the nature of the trial itself and the subjects involved therein. He therefore argues that it is unreasonable for the legal system to grant a procedural subject a right—that of dialoguing with the judge regarding the admissibility of the request for dismissal of a criminal investigation—without also granting them the possibility of verifying that such judge is third-party and impartial; it being necessary to hold, also in light of the interpretation provided by the ECtHR of Article 6 of the ECHR, that the fair trial principle operates also in favor of the crime victim, as it is applicable to any subject with standing to bring an action, regardless of their quality as a "procedural party” and the type of "cause.”

9.– As a preliminary matter, it must be reiterated that the intervention ad adiuvandum filed in the constitutional legitimacy proceedings by P. D.A. is inadmissible, for the reasons already indicated in Order of this Court No. 81 of 2026.

10.– Also as a preliminary matter, it is necessary to examine the objection of inadmissibility raised by the State Attorney General’s Office for failure to attempt a constitutionally oriented interpretation.

The objection is unfounded.

The referring judge, in fact, explicitly states the impossibility of a constitutionally oriented interpretation, based on the consideration of the taxative nature of the list of grounds for challenge, which as such is not susceptible to analogical extension.

11.– On the merits, the question of the constitutional legitimacy of Article 37 of the Code of Criminal Procedure is well-founded, with reference to Article 111 of the Constitution, insofar as it does not provide that a crime victim who has filed an objection to a request for dismissal has standing to challenge the judge for preliminary investigations in connection with the hearing scheduled pursuant to Article 409, paragraph 2, of the same Code.

12.– This conclusion must be reached in view of the growing role assumed in proceedings, on the one hand, by the pre-trial phase and, on the other hand, by the crime victim, as well as by the victim as a protagonist of the innovative restorative justice system.

The criminal procedural system has in fact undergone a profound transformation—not unrelated to a logic aimed at caseload reduction—centered on the strengthening of two pillars: the enhancement of the preliminary investigation phase and the valorization of the crime victim’s role.

Under the first aspect, preliminary investigations are no longer considered a purely preparatory phase, as evidenced, inter alia, by the circumstance whereby investigations must instead be oriented toward a "completeness” functional to a prognosis of conviction, such that both the public prosecutor and the judge of the preliminary hearing must guide their actions by the rule of the "reasonable prediction of conviction,” failing which the former requests dismissal and the latter pronounces a judgment of no grounds to proceed (sentenza di non luogo a procedere), as recently recalled by this Court (Judgment No. 58 of 2026).

As for the growing role assumed by the crime victim within the framework of a fair trial, the following considerations in particular apply.

13.– It must first be recalled that, similarly to abstention, challenge (ricusazione) constitutes one of the means provided by the legal system to safeguard the impartiality of the judge and, consequently, one of the foundations of judicial activity as well as of any trial that, also from a supranational perspective, may be considered "fair.”

Moreover, according to an established trend in the case law of the Court of Cassation, which has risen to the status of living law and was recalled by the referring judge and the State Attorney General’s Office itself, the declaration of challenge may be proposed exclusively by the "parties,” among whom the crime victim does not fall, as they do not hold that qualification in a technical sense (inter alia, Court of Cassation, Second Criminal Section, judgments of April 12–June 14, 2024, No. 23901, and July 1–September 24, 2008, No. 36579; Sixth Criminal Section, judgment of December 12–30, 2008, No. 48494; Fifth Criminal Section, judgment of June 14–October 5, 2007, No. 36657; Sixth Criminal Section, order of July 5–October 24, 2005, No. 39203).

14.– Indeed, the procedural code attributes to the crime victim the qualification of a "subject” of the proceedings (Article 90), whereas the qualification of a "party” is recognized only if, in the capacity of a person suffering damage from the offense (danneggiato dal reato), they exercise the action for damages by joining as a civil party (costituzione di parte civile) in the trial (Article 78). Alongside these concepts is then placed that of the "victim,” belonging to the field of restorative justice—introduced by Law No. 134 of September 27, 2021 (Delegation to the Government for the efficiency of the criminal trial and regarding restorative justice and provisions for the swift conclusion of judicial proceedings) and Legislative Decree No. 150 of 2022—a subject identified, pursuant to Article 42, paragraph 1, letter b), of the latter, as the natural person who has suffered any patrimonial or non-patrimonial harm directly caused by the offense (as well as family members of a person whose death was caused by an offense and who suffered harm as a consequence of such death).

In our legal system, we have witnessed over time, also in compliance with obligations imposed by supranational legislation (in particular, EU Directive 2012/29 of the European Parliament and of the Council of October 25, 2012, establishing minimum standards on the rights, support, and protection of victims of crime and replacing Framework Decision 2001/220/JHA), a process of valorization of the role of the crime victim and the victim in the trial.

Under the aegis of the previous code—characterized by a predominantly inquisitorial model—the crime victim had solely the task of providing the public prosecutor with information useful for conducting investigations, as well as the obligation to testify at trial to ascertain the defendant’s responsibility. In the current procedural system, however, the crime victim, in their capacity as a "subject” of the proceedings pursuant to Article 90 of the Code of Criminal Procedure, may exercise rights and faculties expressly recognized by law, of a soliciting, informative, and participatory nature.

14.1.– This Court has already clarified that "the crime victim, even under the new code, retains the status of a contingent subject of the proceedings or trial and not that of a party” (Order No. 254 of 2011).

Furthermore, constitutional jurisprudence has always viewed "the crime victim in the criminal trial as a subject bearing a twofold interest: that in the compensation for damages, which is exercised through the joinder as a civil party, and that in the establishment of the criminal responsibility of the perpetrator of the offense, which is exercised through an activity supporting and controlling the work of the public prosecutor (Judgment No. 23 of 2015) […] (Judgment No. 203 of 2021, point 4.1. of the Conclusions in Law, which recalls what was already affirmed by Judgment No. 249 of 2020)” (Judgment No. 59 of 2026). To this end, it has also pointed out that "[t]he faculties and rights referred to, in particular, in Articles 90, 90-bis, 101, 336, 341, 360, 369, 377, 394, 408, 410, and 410-bis of the Code of Criminal Procedure are attributed by law to the crime victim and not to the person suffering damage, and are in any event aimed at assisting the public prosecutor for the purpose of exercising criminal action, or at achieving the ascertainment of the offense fact and the just punishment of the culprit” (Judgment No. 203 of 2021, which excludes that these are "powers and faculties necessarily functional to the anticipated protection of the potential right recognized to the civil party”).

In particular, specifically with reference to the power to object to dismissal, this Court has also expressly affirmed that "[t]he role of supporting and controlling the work of the public prosecutor is confirmed by Article 410, paragraph 1, of the Code of Criminal Procedure, where it establishes that ‘[w]ith the objection to the request for dismissal, the crime victim requests the continuation of the preliminary investigations, indicating, under penalty of inadmissibility, the subject matter of the supplementary investigation and the relative items of evidence.’ […] The institution thus represents a mechanism complementary to the control performed ex officio by the judge for preliminary investigations, aimed at filling any investigative gaps and ensuring the completeness of the investigations, in function of the correct exercise of mandatory criminal action, the mandatory nature of which is enshrined in Article 112 of the Constitution. In this perspective, it fits into the complex of powers recognized by the legislature to the crime victim so that the latter may offer their cognitive contribution to the ascertainment of the truth as early as the preliminary investigation phase, both through an auxiliary investigative activity and, subsequently, in the capacity of a witness” (once again, Judgment No. 59 of 2026).

15.– On the other hand, it cannot be ignored that the legislature has on certain occasions used the term "party” in a non-technical sense, i.e., outside the specific meaning of "party to the trial.”

With Judgment No. 559 of 1990—concerning the failure to provide under Article 401 of the Code of Criminal Procedure for the faculty (also) of the crime victim to appoint a technical consultant (consulente tecnico) to participate in the expert opinion ordered through evidentiary proceedings (incidente probatorio)—this Court already affirmed that the term "parties” is sometimes used "in such a way as to include the crime victim,” recalling, in support of this observation, the code’s enabling law (Law No. 81 of February 16, 1987, containing "Legislative delegation to the Government of the Republic for the enactment of the new Code of Criminal Procedure,” and in particular directive principles and criteria numbers 10 and 48 of Article 2, concerning the protection of the parties’ rights regarding expert opinions and the extension of the time limit for completing preliminary investigations) and the code provisions concerning the crime victim, in particular Articles 93, paragraph 3, and 95, paragraph 1, of the Code of Criminal Procedure, regarding the intervention of collective entities harmed by the offense.

Based on this consideration, it was therefore held that the use of the term "parties” in a provision does not, in itself, preclude the feasibility of an expansive interpretation of the same that includes the crime victim. Moving from this assessment, this Court interpreted the then-challenged Article 401 of the Code of Criminal Procedure as including the crime victim among the subjects with standing to appoint a technical consultant to participate in an expert opinion ordered through an evidentiary hearing, even though Article 225 of the Code of Criminal Procedure—to which Article 401, paragraph 5, of the Code of Criminal Procedure, in the text then in force, made an implicit reference by providing that "[e]vidence is taken in the forms established for trial”—provided for reference solely to "private parties” (parti private).

The Court of Cassation as well, particularly when dealing with restitution of time limits (restituzione in termini) pursuant to Article 175 of the Code of Criminal Procedure, has affirmed that "the procedural code does not always, and not necessarily, use the term ‘parties’ in the specific sense of ‘parties to the trial’” (thus, Court of Cassation, Fifth Criminal Section, judgment of June 22–September 20, 2022, No. 34794, but also Sixth Criminal Section, March 30–June 12, 2023, No. 25287; Fifth Criminal Section, January 15–March 3, 2021, No. 8543). Consequently, even though the aforementioned provision makes express reference solely to "parties,” the institution of the restitution of time limits must find application also for crime victims (Cass., No. 34794 of 2022, but also Cass., No. 25287 of 2023 and No. 8543 of 2021; Court of Cassation, Sixth Criminal Section, judgment of February 23–September 25, 2018, No. 41575).

To reach this conclusion, reference was made first of all to the aforementioned Judgment of this Court No. 559 of 1990, recalling that it affirmed, on the one hand, that the powers of the crime victim are "functional to the anticipated protection of the rights recognized to the civil party” and, on the other hand, that "the explicit reference to ‘parties’ is not considered sufficient to exclude the recognition of the right to the restitution of time limits even in the preliminary investigation phase, which likewise does not yet know the existence of ‘parties’ but only of subjects of the proceedings” (Cass., No. 41575 of 2018). It was therefore concluded that "a constitutionally compliant interpretation is one that, in the presence of nullities of communicative acts preventing the crime victim from becoming a party to the trial, allows the latter to exercise a right—that to the restitution of time limits—which, absent the nullity, they could well have exercised as a civil party” (again Cass., No. 41575 of 2018).

In these rulings, the Court of Cassation, while clarifying that such provisions, in which the term "parties” is used, are actually destined to be applied also in the preliminary investigation phase, where procedural parties cannot yet be identified but only subjects of the proceedings (Cass., No. 25287 of 2023, No. 34794 of 2022, and No. 8543 of 2021), reaches these conclusions without stretching the notion of "party” to include the crime victim. Conversely, it expressly affirms that the institution of the restitution of time limits must in any event apply to the latter, even though they cannot be classified as a party (thus again, Cass., No. 34794 of 2022, but also Cass., No. 25287 of 2023 and No. 8543 of 2021).

In essence, the Court of Cassation maintains that, precisely in view of the use in the procedural code of the term "parties” in a manner that is not always rigorous, the literal wording of the rule is not in itself preclusive of the possibility of extending to the crime victim the scope of application of a provision making exclusive reference to "parties.” Thus, the court of legitimacy, even when it chooses to attribute to the crime victim powers and faculties recognized by the code to "parties,” does so while nonetheless denying them the qualification of a party.

16.– In light of the aforesaid reconstruction of the role and qualification recognized to the crime victim, it must be held that their failure to be included—unchallenged under living law—among the subjects with standing to file a declaration of challenge is not constitutionally legitimate.

The principle of a fair trial, the cornerstone of which is that it take place before an impartial and third-party judge, must indeed find application also for the crime victim as a subject of the proceedings.

This is, moreover, shared by the State Attorney General’s Office itself, in whose opinion "every trial, pursuant to Article 111 of the Constitution, must take place with adversarial proceedings between the parties, and this requires classifying as a party all subjects who indeed participate in a proceeding with an essential role in the dynamics of adversarial debate.”

As is known, at the foundation of the principle of the fair trial, expressly recognized with the constitutional reform of Article 111 of the Constitution pursuant to Constitutional Law No. 2 of November 23, 1999, lie the requirement of the judge’s impartiality and the specular requirement of the equality of procedural parties. It has, moreover, already been clearly affirmed that "[w]ithin the principle of the fair trial, the profiles of which this Court has defined on numerous occasions on the basis of constitutional provisions concerning the regulation of jurisdiction, a central place is occupied by the impartiality-neutrality of the judge, in the absence of which all other procedural rules and guarantees would lose concrete meaning” (Judgment No. 306 of 1997).

Furthermore, the notion of a fair trial embraces the entire proceeding before a judge, covered in its entirety by constitutional guarantees; consequently, the phase prior to the initiation of the trial cannot be considered excluded from such guarantees.

This applies all the more in a context such as the current one, which—as recalled above (point 11)—tends to valorize the preliminary investigation phase preceding the trial.

Every subject of the proceedings—and all the more so, as in the present case, the very one who initiated it—must be able to avail themselves of the rules established to ensure that the independence of the judge is guaranteed.

Moreover, as aptly observed also by the referring judge, it would be entirely incongruous to grant the crime victim the right to dialogue with the judge regarding dismissal and then preclude them from the faculty to ascertain the judge’s independence and impartiality, resulting in the substantial hollowing out of that very right.

To this must be added that—as already observed (point 13)—the crime victim is entrusted with the fundamental "role of supporting and controlling the work of the public prosecutor,” of which the objection to the request for dismissal is one of the principal instruments. This is, in fact, a mechanism aimed at filling any investigative gaps and ensuring the completeness of investigations, which is itself functional to the correct exercise of mandatory criminal action; a mechanism that fits into the complex of powers recognized by the legislature to the crime victim so that the latter may offer their cognitive contribution to the ascertainment of the truth as early as the preliminary investigation phase (Judgment No. 59 of 2026). And such a role cannot fail to encompass the faculty to challenge the independence and impartiality of the judge within the framework of a fair trial.

17.– For the reasons set forth above, the existence of a constitutional breach in the terms argued by the referring judge must therefore be affirmed.

To remedy this, it is sufficient to declare the constitutional illegitimacy, for conflict with Article 111, second paragraph, of the Constitution, of Article 37 of the Code of Criminal Procedure, insofar as it does not provide that the judge of the hearing referred to in Article 409, paragraph 2, of the Code of Criminal Procedure may be challenged (also) by the crime victim who has filed an objection to the request for dismissal.

17.1.– The questions of constitutional legitimacy concerning the same provision with reference to Article 117, first paragraph, of the Constitution, in relation to Article 6, paragraph 1, of the ECHR, and those concerning Articles 38 and 409, paragraphs 2, 3, 4, and 5, of the Code of Criminal Procedure, with reference to all invoked parameters, are absorbed.

on these grounds

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 37 of the Code of Criminal Procedure, insofar as it does not provide that the judge of the hearing referred to in Article 409, paragraph 2, of the Code of Criminal Procedure may be challenged by the crime victim who has filed an objection to the request for dismissal.

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

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on July 21, 2026

 

The anonymized version conforms in its text to the original