JUDGMENT NO. 149

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

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

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 58-quater, paragraph 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), brought by the Surveillance Magistrate of Bologna, within the surveillance proceedings upon the application of S. B., by orders dated 15 July 2025, registered respectively as numbers 180 and 181 of the 2025 register of orders, and published in the Official Journal of the Republic No. 40, 1st special series, for the year 2025, the hearing of which was scheduled for the chamber council meeting of 4 May 2026.

Having regard to the briefs in intervention filed by the President of the Council of Ministers;

having heard in the chamber council meeting of 20 May 2026 the Judge Rapporteur Antonella Sciarrone Alibrandi;

deliberated in the chamber council meeting of 20 May 2026.

The Facts

1.– By order dated 15 July 2025 (reg. ord. No. 180 of 2025), the Surveillance Magistrate of Bologna raised, with reference to Articles 3, 13, and 27, third paragraph, of the Constitution, questions concerning the constitutional legitimacy of Article 58-quater, paragraph 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), "insofar as it provides that ‘the prohibition on granting benefits shall apply for a period of three years from the moment when the enforcement of custody or of the sentence is resumed or the revocation order referred to in paragraph 2 has been issued’ instead of establishing that ‘[t]he prohibition on granting benefits shall apply for a period equal to half of the residual sentence and, in any event, not exceeding three years, and shall run from the moment when the enforcement of custody or of the sentence is resumed or the revocation order referred to in paragraph 2 has been issued’.”

2.– In the main proceedings (*giudizio a quo*), S. B. – a detainee serving a one-year prison sentence, commencing on 20 December 2024 and ending on 19 December 2025 – filed an application for admission to home detention at the domicile of a third party, pursuant to Article 1 of Law No. 199 of 26 November 2010 (Provisions concerning the home enforcement of custodial sentences not exceeding eighteen months).

Previously, S. B. had already been subjected to the enforcement of sentences of one year and six months' imprisonment and four months' arrest, which were the subject of a cumulative sentencing order issued by the competent judicial authority, having entered prison on 25 July 2022.

He had subsequently been admitted, having met the statutory requirements, to the measure of home enforcement of the sentence pursuant to Article 1 of Law No. 199 of 2010, effective from 9 January 2023.

That benefit had been revoked on 13 February 2024 by the Surveillance Court of Brescia, "due to inappropriate conduct held during the measure.”

Having served the residual sentence within the correctional facility, S. B. was released from prison on 9 April 2024.

Subsequently, the competent Public Prosecutor's Office initiated the enforcement of the current title depriving him of liberty, suspending the imprisonment order pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure and transmitting the case files to the Surveillance Court of Venice.

The latter court, taking note of the revocation of the previous alternative measure, declared inadmissible, pursuant to the prohibition set forth in the censured provision, applications for the grant of alternative measures similar to those filed in these main proceedings, thereby determining "the initiation of enforcement within correctional facilities.”

Similar judgments of inadmissibility were issued regarding other applications resubmitted to the Surveillance Office and the Surveillance Court of Bologna.

3.– The referring judge observes that, likewise pursuant to the censured provision, the main proceedings should also be concluded with a declaration of inadmissibility. Conversely, should the questions be upheld as formulated, the effects of the revocation incurred by the applicant "would as of today be exhausted” and the relative application could consequently be examined on its merits; this would satisfy the requirement of relevance (*rilevanza*), which is deemed to be met even when the auspicated judgment of acceptance imposes upon the judge a different argumentative path, "even if the outcome of the proceedings were hypothetically identical,” without prejudice to the fact that, in the referring judge's view, the evaluative elements available to him "might already in these proceedings adumbrate the actual occurrence of the conditions for granting the requested benefit.”

In any event, it is added, the potential release of the applicant from prison prior to the conclusion of the incidental constitutional legitimacy proceedings would not suffice to render the raised questions irrelevant, as such proceedings remain indifferent to events occurring subsequent to the referral order.

4.– This having been premised, the Surveillance Magistrate of Bologna, firstly, provides a thorough reconstruction of the relevant regulatory and case-law framework.

4.1.– He recalls that paragraph 1 of Article 58-quater of the Penitentiary Ordinances (*ordin. penit.*) establishes a general prohibition on granting penitentiary benefits to convicted persons who have been found guilty of conduct constituting the offense of escape pursuant to Article 385 of the Criminal Code, whereas the subsequent paragraph 2 extends the application of this prohibition also to convicted persons against whom the revocation of alternative measures has been ordered pursuant to Article 47, paragraph 11 (probation to the social service), Article 47-ter, paragraph 6 (home detention), and Article 51, first paragraph (semi-liberty) of the Penitentiary Ordinances, in cases where "the probationer, the home detainee, or the semi-liberty inmate,” during the enjoyment of the benefit, has engaged in conduct contrary to the law or to specifically prescribed rules, such as to be incompatible with the continuation of the measure.

Paragraph 3 of the same Article 58-quater of the Penitentiary Ordinances governs the duration of such prohibition, fixing it at a mandatory period of three years, running, in the event of escape, from the reinstatement of sentence enforcement, and, in the case of revocation of a previous alternative measure, from the date of adoption of the relative order.

The aforementioned overall regulatory framework, the referring judge adds, is also applicable "to the measure of home enforcement of the sentence,” by virtue of the express reference contained in paragraph 8 of Article 1 of Law No. 199 of 2010 to numerous provisions of the penitentiary system, albeit "insofar as compatible”; among such provisions are, in fact, those set forth in many paragraphs of Article 47-ter (including paragraphs 4 and 6, which govern the application and revocation of home detention) and the entirety of Article 58-quater (with the sole exception of paragraph 7-bis, which refers to cases of convicted persons to whom habitual recidivism with multiple aggravating factors has been applied).

The judge *a quo* also illustrates the procedural steps for the revocation of alternative measures to detention, recalling that, pursuant to Article 51-ter of the Penitentiary Ordinances, in the presence of conduct appearing incompatible with the continuation of the measure, the surveillance magistrate immediately informs the surveillance court so that it may rule on the continuation, replacement, or revocation of the measure itself.

For the referring judge, therefore, revocation "must be understood as the maximum penalty for those culpable behaviors of the individual which have demonstrated that the convicted person is no longer worthy of enjoying the alternative measure.”

It is precisely to this "negative and culpable judgment” that "the additional penalty of a three-year bar on access to benefits,” provided for by the censured provision, is linked.

4.2.– The referring judge is aware that this Court has already deemed the statutory provision under examination to be "particularly severe, but, at least hitherto, not absolutely incompatible with constitutional principles,” inasmuch as it is linked to the revocation of an alternative measure which is certainly not automatic, but rather adopted on the basis of an assessment "made in concrete terms and on a case-by-case basis” by the surveillance judiciary, which conducts an individualized judgment regarding the conduct held, contemplating also options other than revocation (reference is made to Judgment No. 173 of 2021 and Order No. 87 of 2004).

Nevertheless, he points out that, in Judgment No. 173 of 2021, this Court "invited the legislature to rethink the regulatory framework” precisely with regard to the duration of the censured bar, which, although capable of being mitigated by the effects of early release (*liberazione anticipata*), "ends up covering, in a high number of cases, all or almost all of the residual sentence.”

5.– In the view of the judge *a quo*, the "reasons for friction” with the invoked constitutional parameters are rooted in the "fixed duration of the bar” and the "extremely broad spectrum of benefits that it covers,” thereby potentially "exhausting definitively the convicted person’s chances of social reintegration.”

The referring judge acknowledges that, even in light of constitutional case-law, additional effects beyond the mere revocation of the measure, "aimed at penalizing the culpable failure of an extra-mural experience with a commensurate period of treatment regression that is not subject to derogations,” present "a reasonableness of their own.”

However, he perceives a disproportion in the "fixed and generalized” measure of such period, which eliminates "any room for assessment” regarding potential "significant changes concerning the convicted person’s personality” subsequent to the revocation, "where the residual sentence is less than three years or concerns successive enforcement orders.”

The feature of immutable duration is, moreover, precisely the aspect that this Court has "already indicated to the legislature as a possible area for legislative intervention,” through an invitation that has "hitherto remained entirely unheeded.”

5.1.– Firstly, in breach of Articles 3 and 27, third paragraph, of the Constitution, the censured mechanism, "even if not supported by operational automatism, in a large number of cases proves unreasonable to the extent that it ends up entirely sacrificing the principle of rehabilitation (*emenda*)”; indeed, in its absolute temporal dimension, where the residual sentence is of a duration shorter than three years, it fails to allow "any glimpse of evolution in terms of resocialization” to follow the treatment regression, thereby disincentivizing the convicted person "from any commitment to treatment.”

5.2.– Secondly, the bar under examination would not be consistent "with the principle of the minimum necessary sacrifice of personal liberty,” as enshrined in Article 13 of the Constitution.

In particular, following the revocation of the alternative measure, even if "the risk of recidivism” should cease, the individual would continue to be subjected for an immutable period or, in any event, "until the end of the sentence, where this is shorter than three years, to unexceptionably in-mural enforcement, which maximally restricts personal liberty,” without this corresponding to "a real requirement of social defense.”

5.3.– Finally, there would be an unjustified disparity of treatment compared to the regulatory framework – adopted as a *tertium comparationis* – laid down for the revocation of substitute penalties for custodial sentences. The latter would represent a significant "element of novelty” for the purpose of reproposing questions of constitutional legitimacy already deemed unfounded by this Court with respect to the indicated parameters, also because the relative legislation would be useful for identifying "a constitutionally adequate solution to eliminate the *vulnus* created by Article 58-quater of the Penitentiary Ordinances in its current wording,” in light of the "clear substantive homogeneity between substitute penalties and custodial sentences served in the form of an alternative measure.”

In this regard, the referring judge recalls that Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the swift definition of judicial proceedings) introduced the following substitute penalties for short custodial sentences: substitute semi-liberty, substitute home detention, substitute community service, and substitute pecuniary penalty, governed in a specific Chapter, the third, of Law No. 689 of 24 November 1981 (Amendments to the criminal system). These penalties are "more oriented towards *favor libertatis* and the principle of rehabilitation,” being applicable by the trial judge (*giudice della cognizione*) who pronounces the judgment of conviction. Their discipline, moreover, was "largely borrowed and modeled” upon that of the alternative measures to detention provided for by the penitentiary system, these being institutions characterized, in the opinion of the judge *a quo*, by "an evident axiological, teleological, and functional commonality.”

In particular, common to both is the standard of judgment governing the discretionary choice of, respectively, the trial judge and the surveillance judge, consisting in the assessment of greater suitability to ensure the re-education of the convicted person and the prevention of the risk of committing further offenses.

The judge *a quo* further points out that Article 76 of Law No. 689 of 1981 extends the application of several provisions of the penitentiary system to substitute penalties, within the limits of compatibility, "as proof of the common root of the two regulatory systems.”

Notwithstanding this, the referring judge, "precisely on the point of the revocation of substitute penalties and the preclusive mechanisms consequential thereto,” notes "a clear deviation of the delegated legislature from the model represented by Article 58-quater of the Penitentiary Ordinances.”

In particular, in the event of revocation of substitute penalties for non-compliance with imposed rules, Article 66 of Law No. 689 of 1981 provides that the competent judge, if deemed appropriate to order the aggravation or revocation of the measure, shall proceed in the forms of the enforcement proceedings, pursuant to Article 666 of the Code of Criminal Procedure.

Subsequent Article 72, for its part, governs a series of hypotheses in which revocation ensues upon conviction for offenses committed during the enforcement of the substitute penalty, but never automatically: for some of them, indeed, an assessment of minor gravity is possible, and, for the remaining non-culpable offenses (*delitti non colposi*), an evaluation of the incompatibility of the conduct held with the continuation of the substitute penalty is required.

Thus, for the referring judge, "the revocation of substitute penalties also appears to postulate a judgment assessing the necessity of a regression in the convicted person’s treatment,” in the presence of a risk of recidivism "that cannot be contained” through the continuation of the measure or its replacement with another "more restrictive one, in terms not dissimilar from what occurs in the judgment referred to in Article 51-ter of the Penitentiary Ordinances.”

That being established, it is further observed, the revocation order produces "preclusive effects on access to further benefits, which concern both the system of substitute penalties and alternative measures to detention.”

With particular reference to the profile of the relationship between the revocation of a substitute penalty and access to alternative measures to detention, the referring judge perceives significant differences which he invokes in support of the raised objections.

In this regard, Article 67, second paragraph, of Law No. 689 of 1981 becomes relevant.

This provision, for adults who have incurred the revocation of a substitute penalty (and, consequently, are serving the custodial sentence determined following conversion carried out pursuant to Articles 66 and 72 of the same law), provides that alternative measures to detention "shall likewise not apply, prior to the actual serving of half of the residual sentence.”

Thus, barring an assessment of merit in concrete terms, the revocation of a substitute penalty does not prevent, despite the commencement of the serving of the custodial sentence resulting from the conversion, access to reward leaves (*permessi premio*) and external work (*lavoro all’esterno*) pursuant to Articles 30-ter and 21 of the Penitentiary Ordinances, as well as to further alternative measures to detention, while requiring the serving of half of the residual sentence.

For the referring judge, although "the negative element represented by the revocation of the substitute penalty will be difficult to overcome in a short span of time,” the discipline governing the revocation of substitute penalties does not conflict with the invoked parameters, because it allows the surveillance magistrate to "examine the applicant’s position on its merits, individualizing the judgment and giving relevance to subsequent events, without definitively frustrating the chances of access to new extra-mural enforcement forms that are less intrusive on personal liberty and more oriented towards social reintegration.”

The aforementioned difference in discipline would prove unjustifiable in light of the principle of equality, because, in both cases, the convicted persons would have "proved inadequate during extra-mural enforcement,” being "likewise judged worthy of treatment regression, incurring the reinstatement of the custodial sentence and imprisonment.”

The disparate treatment between the two categories of revocation would appear even more striking when one considers that a convicted person who has incurred the revocation of an alternative measure "for serious violations of rules not amounting to criminal conduct” finds himself subjected to a bar that is unjustifiably more rigid than that applicable to a convicted person who has incurred the more serious category of revocation of a substitute penalty "for the commission of a non-culpable offense during the same.”

For the referring judge, the divergence in discipline cannot be based on "a formalistic element,” such as "the type of sentence upon which the revocation judgment focuses,” in the face of the necessity to perform the same "balancing of the constitutional interests at stake” for substantially homogeneous situations.

6.– The Surveillance Magistrate of Bologna identifies precisely in the regulatory option enshrined in Article 67, second paragraph, of Law No. 689 of 1981 the constitutionally adequate solution to remove the denounced *vulnera* to the invoked constitutional parameters.

Such provision, by introducing a bar on access "to other forms of extra-mural enforcement provided for by the penitentiary system” in the event of revocation of a substitute penalty, would produce "effects homologous to those provided for by Article 58-quater of the Penitentiary Ordinances.”

However, in the referring judge's view, it would lay down a discipline "certainly more suitable” than the censured one, since, in imposing a temporary regression of treatment, it would not exhaust the sentence being served, allowing the convicted person "to have before him a possible horizon within which to direct his efforts and energies” from a resocializing perspective.

It would essentially be a matter of borrowing – while adapting them – the provisions of Article 67, second paragraph, of Law No. 689 of 1981 and thus exclusively modifying the duration of the bar, anchoring it "to a portion of the residual sentence, while maintaining, in any event, the maximum limit of three years.”

This latter clarification is deemed necessary because, although most alternative measures to detention present "a sentence threshold for access homologous to that provided in matters of substitute penalties and contained within four years,” there are some, such as semi-liberty, "which can be enjoyed even where the residual sentence is much greater.” If this final clause were not maintained, a discipline even harsher than the current one could result, with an effect *in malam partem* in the matter of access to alternative measures to detention, which for the referring judge "now peacefully falls within substantive criminal law” (reference is made to Judgment of this Court No. 32 of 2020).

Such a solution would identify "a point of equilibrium between the instances *de libertate* and the re-education of the convicted person and those of social security crystallized in the revocation ruling,” sacrificing the former only for the period strictly necessary to allow, through the reinstatement of in-mural observation and treatment, a further assessment regarding not only the continuing actuality of the concrete risk of recidivism identified at the time of revocation, but also the "possible construction of a new treatment and re-educational perspective”; an objective, the latter, which the current legislation sacrifices in its entirety, "where the sentence is exhausted within the three-year period, without allowing the Surveillance Court to grade the effects of its ruling.”

7.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office (*Avvocatura generale dello Stato*), asking that the raised questions be declared inadmissible or, in any event, unfounded.

7.1.– For the intervener, the judicial addition (*addizione*) auspicated by the referring judge, in the absence of a constitutionally mandated solution, would amount to a request for review of the legislature's political discretion, exceeding the powers of intervention of this Court.

7.2.– On the merits, citing Judgment No. 173 of 2021 and Order No. 87 of 2004, the State Attorney General recalls that this Court has already ruled out any conflict between the discipline once again censured today and Articles 3 and 27 of the Constitution.

As to the projected infringement of the principle of equal treatment, it adds that it would not be possible to extend to alternative measures to detention the discipline applicable to substitute penalties, "given that these are institutions having a different legal nature,” as had already been recognized in Judgment No. 84 of 2024 of this Court.

8.– By another order dated 15 July 2025 (reg. ord. No. 181 of 2025), the Surveillance Magistrate of Bologna raised questions concerning the constitutional legitimacy of Article 58-quater, paragraph 3, of Law No. 354 of 1975, identical to those put forward with the order registered under No. 180 reg. ord. of 2025 and examined in the preceding points 3 to 7, as this concerns the same factual matter – illustrated in preceding point 2 – regarding the convicted person S. B., who, in the main proceedings, filed the alternative application for provisional home detention, pursuant to Article 47-ter, paragraph 1-quater, of Law No. 354 of 1975, at the domicile of the same third party indicated in the proceedings originating the case registered under No. 180 reg. ord. of 2025.

9.– The reasoning concerning relevance mirrors that set forth in the order registered under No. 180 reg. ord. of 2025, and illustrated here in preceding point 3; the referring judge adds, however, that, "even in summary proceedings” such as those in question, the admissibility of the proposed application involves a preliminary issue "to the assessment of decidability on the merits which, indeed, precludes such further scrutiny,” so that the preliminary nature (*pregiudizialità*) of the question of constitutional legitimacy "subsists even in *monitory* proceedings.”

Furthermore, the referring judge points out that the suspension of proceedings in summary matters, as a result of raising the questions of constitutional legitimacy, will determine "a standstill of the current procedure, without transmission of the files to the Surveillance Court of Bologna,” so that one could not even hypothesize a supervening lack of *potestas iudicandi* over the application that gave rise to the main proceedings.

10.– The reasoning concerning the non-manifestly unfounded nature of the raised questions reproduces verbatim that illustrated in preceding points 4 to 6, to which reference may therefore simply be made.

11.– The President of_the Council of Ministers also intervened in the proceedings registered under No. 181 reg. ord. of 2025, represented and defended by the State Attorney General’s Office, asking that the raised questions be declared inadmissible or, in any event, unfounded, on the basis of the same arguments set forth in the brief in intervention relating to the proceedings registered under No. 180 reg. ord. of 2025, which were illustrated in preceding point 7.

The Law

12.– By two orders of similar tenor, registered under numbers 180 and 181 reg. ord. of 2025, the Surveillance Magistrate of Bologna, arguing their conflict with Articles 3, 13, and 27, third paragraph, of the Constitution, raises questions of constitutional legitimacy concerning Article 58-quater, paragraph 3, of the Penitentiary Ordinances, insofar as it provides that, in the event of revocation of an alternative measure to detention, the prohibition on granting new benefits "shall apply for a period of three years from the moment when the enforcement of custody or of the sentence is resumed or the revocation order referred to in paragraph 2 has been issued” instead of "for a period equal to half of the residual sentence and, in any event, not exceeding three years, running from the moment when the enforcement of custody or of the sentence is resumed or the revocation order referred to in paragraph 2 has been issued.”

13.– Article 58-quater of the Penitentiary Ordinances provides, in paragraph 1, that "[a]ssignment to external work, reward leaves, probation to the social service in the cases provided for by Article 47, home detention, and semi-liberty may not be granted to a convicted person who has been found guilty of conduct punishable pursuant to Article 385 of the Criminal Code.”

Paragraph 2 of the same article extends this discipline to the "convicted person against whom the revocation of an alternative measure has been ordered pursuant to Article 47, paragraph 11, Article 47-ter, paragraph 6, or Article 51, first paragraph.”

Subsequent paragraph 3 establishes that "[t]he prohibition on granting benefits shall apply for a period of three years from the moment when the enforcement of custody or of the sentence is resumed or the revocation order indicated in paragraph 2 has been issued.”

It follows – as highlighted by the judge *a quo* – that the convicted person whose probation, home detention, or semi-liberty has been revoked pursuant to the provisions referred to in paragraph 2 cannot obtain any of the benefits or alternative measures indicated in paragraph 1 before three years have elapsed since the revocation of the previously obtained alternative measure.

The present objections focus on the duration of this three-year bar.

14.– The two *quibus* proceedings originate from a unitary factual matter concerning a detainee who, while serving a one-year prison sentence, filed two applications: in the proceedings registered under No. 181 reg. ord. of 2025, the application seeks the provisional grant of home detention, pursuant to Article 47-ter, paragraph 1-quater, of the Penitentiary Ordinances; in the proceedings registered under No. 180 reg. ord. of 2025, the request is instead to be admitted, on a definitive basis, to the home enforcement of the sentence, pursuant to Article 1 of Law No. 199 of 2010.

The Surveillance Magistrate of Bologna would be required to declare both applications inadmissible, because, during the home enforcement of a previous custodial sentence, the convicted person suffered the revocation of that alternative measure "due to inappropriate conduct,” resulting in re-entry into a correctional facility.

By virtue of the censured provision, this revocation, although occurring within the scope of a distinct enforcement proceeding, prevents the granting of further benefits for a three-year period (running from the moment of the revocation itself), which has not yet elapsed as of the date of submission of the applications in the main proceedings.

15.– On the point of relevance, the referring judge highlights that, should the questions be upheld as formulated, the effects of the revocation incurred by the applicant "would as of today be exhausted,” more than six months having elapsed (equal to half of the sentence still to be served) from the date of the revocation order regarding the previous alternative measure, so that the relative applications could be examined on their merits.

16.– As to the non-manifestly unfounded nature of the claims, the judge *a quo* comprehensively reconstructs the relevant regulatory framework regarding alternative measures to detention and the preclusive mechanisms governing their grant.

In particular, he recalls that, pursuant to Article 51-ter of the Penitentiary Ordinances, in the presence of conduct appearing incompatible with the continuation of the measure, the surveillance magistrate immediately informs the surveillance court, which may discretionarily decide, weighing the circumstances of the concrete case, whether to order the continuation, replacement, or, as a last resort, revocation.

In this regard, the referring judge is aware that this Court has already declared similar questions unfounded, ruling out the existence of automatisms incompatible with the invoked parameters (Judgment No. 173 of 2021).

He considers, however, that the aforementioned ruling "invited the legislature to rethink the discipline” precisely with regard to the duration of the bar following revocation.

For the referring judge, the "reasons for friction” with the invoked constitutional parameters are rooted in the "fixed duration of the bar” and the "extremely broad spectrum of benefits that it covers,” thereby potentially "exhausting definitively the convicted person’s chances of social reintegration,” especially "where the residual sentence is shorter than three years or concerns successive enforcement orders.”

Firstly, the censured mechanism would prove "unreasonable to the extent that it ends up entirely sacrificing the principle of rehabilitation,” in breach of Articles 3 and 27, third paragraph, of the Constitution.

Furthermore, the immutability of the duration of the bar, insensitive even to the potential actual cessation of the "risk of recidivism,” would not be consistent "with the principle of the minimum necessary sacrifice of personal liberty” protected by Article 13 of the Constitution.

Finally, there would be an unjustified disparity of treatment, infringing Article 3 of the Constitution, compared to the legislation introduced by Legislative Decree No. 150 of 2022, which amended Law No. 689 of 1981 also regarding the discipline governing the revocation of substitute penalties for short custodial sentences: a discipline that, in light of the "clear substantive homogeneity between substitute penalties and custodial sentences served in the form of an alternative measure,” would represent a significant "element of novelty” for the purpose of reproposing questions of constitutional legitimacy already deemed unfounded by this Court.

With particular reference to the "preclusive effects on access [...] to alternative measures to detention,” the judge *a quo* notes that the amended Article 67, second paragraph, of Law No. 689 of 1981 provides, for adults who have incurred the revocation of a substitute penalty (and who, consequently, are serving the custodial sentence determined following conversion carried out pursuant to Articles 66 and 72 of the same law), that alternative measures to detention "shall likewise not apply [...] prior to the actual serving of half of the residual sentence.”

In this manner, the regulatory provision adopted as a *tertium comparationis* allows the magistrate to give relevance also to events subsequent to revocation, "without definitively frustrating the chances of access to new extra-mural enforcement forms that are less intrusive on personal liberty and more oriented towards social reintegration.”

The referring judge identifies precisely in this more flexible mechanism the constitutionally adequate solution to remove the denounced *vulnera* to the invoked constitutional parameters.

17.– As a preliminary matter, the proceedings must be ordered to be joined so that they may be decided with a single judgment, inasmuch as the relative questions of constitutional legitimacy concern the same provision and set forth identical issues, invoking overlapping parameters.

18.– The President of the Council of Ministers, intervening in the proceedings, excepted the inadmissibility of the questions, on the ground that a manipulative ruling had been requested in the absence of a single constitutionally mandated solution.

The exception is not well-founded, given that now-settled constitutional case-law holds that " ‘the absence of a solution with obligatory choices [rime obbligate] does not in itself preclude the examination on the merits of the objections’ (Judgment No. 48 of 2021)” (Judgment No. 138 of 2025). It is in these proceedings that, in compliance with Article 28 of Law No. 87 of 1953, it must rather be assessed whether the solution suggested by the referring judge, or others otherwise discoverable in the system, are constitutionally adequate.

19.– Regarding the *thema decidendum*, the referring judge urges the declaration of constitutional illegitimacy of the three-year prohibition on granting new benefits also insofar as it operates from the moment of "the resumption of the enforcement of custody or of the sentence,” thereby encompassing within the *petitum* also the portion of the censured provision referring to the case contemplated by paragraph 1 of the same Article 58-quater of the Penitentiary Ordinances, relating to the "convicted person who has been found guilty of conduct punishable pursuant to Article 385 of the Criminal Code.”

Limited to this profile, the raised questions of constitutional legitimacy must be declared inadmissible, for the overriding reason that this is not the situation of the convicted person in the main proceedings, who, by contrast, had a previous alternative measure to detention revoked pursuant to Article 47-ter, paragraph 6, of the Penitentiary Ordinances – referred to by Article 1, paragraph 8, of Law No. 199 of 2010 – i.e., pursuant to one of the measures indicated in paragraph 2 of Article 58-quater of the Penitentiary Ordinances, adopted for "inappropriate conduct occurring during the measure.”

Moreover, it is barely worth highlighting that, regarding Article 58-quater, paragraph 1, of the Penitentiary Ordinances, this Court has ruled with Judgment No. 189 of 2010, with which subsequent legitimacy case-law has aligned (among the latest, Court of Cassation, First Criminal Section, Judgment 4 November–3 December 2025, No. 39128), yielding outcomes in harmony with the direction of the ruling requested by today's referring judge.

20.– The *thema decidendum* having been thus delimited, the reasoning of the referral order regarding admissibility appears entirely plausible, given that legitimacy case-law (among the most recent, Court of Cassation, First Criminal Section, Judgments 12 September 2024–9 January 2025, No. 808; 9 March–23 June 2022, No. 24204; 19 February–13 May 2020, No. 14860) considers the three-year bar under examination to be applicable even where the detainee is serving a sentence different from the one that gave rise to the enforcement proceedings within which revocation occurred, just as happens in the case underlying the *quibus* proceedings.

Also correct is the conclusion that only the upholding of the questions would allow the applications to be scrutinized on their merits, since the referring judge would otherwise be forced to limit himself to declaring them inadmissible on the ground that the three-year period since the revocation of the previous alternative measure has not yet elapsed. The ruling of this Court would therefore certainly affect the logical-argumentative path to be followed in deciding the detainee's requests, even if the outcome of the main proceedings were not to rule in favor of the applicant (Judgments No. 23 of 2026 and No. 135 of 2024).

After all, as the judge *a quo* correctly observes, not even the potential expiration of the sentence prior to this Court's decision could operate as a bar to admissibility: " ‘By virtue of its autonomous nature, the incidental proceeding of constitutional legitimacy is unaffected by factual events subsequent to the referral order, so that the relevance of the questions must be assessed *ex ante*, with reference to the time they were raised (lastly, Judgments No. 22 and No. 7 of 2022, No. 127 of 2021, No. 270, No. 244, and No. 85 of 2020)’ (Judgment No. 30 of 2022; in the same sense, Judgments No. 211 and No. 120 of 2024).”

21.– Turning to the merits, the judge *a quo* essentially asks for a reconsideration of the conclusion reached by this Court – on issues overlapping with today's – in Judgment No. 173 of 2021, which in turn confirms and develops prior Order No. 87 of 2004.

It is therefore appropriate to take our departure from the examination of those prior rulings of unfoundedness, in order to evaluate the persuasiveness of the arguments offered in support of today's objections.

21.1.– Order No. 87 of 2004 declared manifestly unfounded the questions of constitutional legitimacy raised, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, concerning Article 58-quater, paragraphs 2 and 3, of the Penitentiary Ordinances, observing that the three-year bar under examination ensues upon the revocation of alternative measures "which is not ‘automatic’, but based upon a concrete, case-by-case assessment of situations in which the convicted person's conduct, contrary to the law or rules, proves incompatible with the continuation of probation (Article 47, paragraph 11, of the Penitentiary Ordinances) or home detention (Article 47-ter, paragraph 6, of the Penitentiary Ordinances), or of situations in which the individual proves unsuitable for semi-liberty treatment (Article 51, paragraph 1, of the Penitentiary Ordinances).”

21.2.– A little more than fifteen years after that initial ruling, this Court was once again called upon to address similar issues, which were again decided in the sense of unfoundedness by Judgment No. 173 of 2021.

On that second occasion as well, in which the referring judge had censured the first three paragraphs of Article 58-quater of the Penitentiary Ordinances, this Court declared the questions then raised unfounded, stating that the censured bar, "although undoubtedly severe and debatable from the standpoint of penitentiary policy choices,” constitutes an expression of legislative discretion, "not in conflict with the constitutional principle of the re-educational finalization of the sentence (Article 27, first and third paragraphs, of the Constitution), and not so unreasonable as to constitute an infringement pursuant to Article 3 of the Constitution.”

Firstly, it observed that the examined three-year bar "does not establish an exclusionary automatism based on the title of the offense, unlike other bars deemed constitutionally illegitimate for conflict with Articles 3 and 27, third paragraph, of the Constitution, among which notably those subject to Judgments No. 149 of 2018 and No. 253 of 2019.”

It then highlighted that the same bar does not depend "upon a judgment of greater dangerousness expressed by the trial judge through the recognition of the aggravating circumstance of recidivism, as instead occurred regarding the prohibition on granting home detention to the recidivist inmate over seventy years of age established by Article 47-ter, paragraph 01, of the Penitentiary Ordinances,” which was for this reason deemed constitutionally illegitimate by Judgment No. 56 of 2021.

Furthermore, it ruled out that the arguments used by constitutional case-law for prior declarations of constitutional illegitimacy of the censured mechanism, dating back to Judgments No. 436 of 1999 and No. 187 of 2019, could be utilized for deciding the raised questions, as they were calibrated to the situation of minor convicts or solely to home detention (ordinary or special) functional to the care of children under ten years of age (where the primary interest to be protected is that of the child to be cared for by at least one parent).

Judgment No. 173 of 2021 reaffirmed that the prohibition under examination is based "upon the specific finding by the surveillance court itself of specific violations committed by the convicted person during the enjoyment of the measure itself” and highlighted that, pursuant to Article 51-ter, paragraph 1, of the Penitentiary Ordinances, the surveillance court has the possibility "to react to the commission of conduct likely to determine the revocation of the alternative measure through a plurality of responses,” among which revocation is reserved solely for the most serious cases.

It was therefore emphasized that the surveillance judiciary, in exercising its evaluative discretion, must "take into account also the particularly burdensome consequences associated with revocation, and in particular the bar – over an entire three-year period – concerning the grant of any other alternative measure or penitentiary benefit, other than early release.”

It was not failed to be emphasized, however, that it remained entrusted "to the legislature's discretion to evaluate whether and to what extent the rigor of the censured discipline [could] be mitigated, also in relation to the risk that the three-year bar established by it lead[s], in practice, to making improbable not only a second access to alternative measures, but also the enjoyment of the more limited benefits of reward leaves and external work from prison during the subsequent enforcement of the sentence,” adding that, "taking into account the stringent sentence limits imposed or residual that condition access to individual measures today (four years, in ordinary hypotheses of home detention and probation to the social service), as well as the technical timeframes necessary for the examination of the convicted person's applications by the surveillance judge, the three-year bar following revocation, although potentially tempered by the effects of early release, ends up covering, in a high number of cases, all or almost all of the residual sentence.”

22.– Today's referral orders express dissatisfaction with the framework resulting from the illustrated precedents and, precisely with a view to giving value to the considerations expressed in the final part of Judgment No. 173 of 2021, invite this Court to take a further step towards the necessary individualization of penitentiary treatment in the face of the inertia demonstrated by the legislature, which nevertheless, in the adjoining sector of substitute penalties, has favored, in the event of their revocation, greater flexibility regarding subsequent access to extra-mural enforcement measures.

23.– That having been premised, in order to assess whether, in the present case, the conditions exist to depart from the solutions previously adopted by this Court, it is well to reaffirm what was affirmed in this regard in Judgment No. 203 of 2024, according to which "the tendential respect for one's precedents – together with the consistency of interpretation with the text of the interpreted rules and the persuasiveness of the reasoning – is, for superior courts, an essential condition for the authority of their decisions, ensuring that the criteria of judgment utilized remain at least relatively stable over time, and do not constantly change in relation to the variable composition of the court.”

Both in the precedent last cited and in subsequent rulings, the principle just recalled was, however, accompanied by the statement that "[i]t is obviously well possible for this Court to reconsider its orientations and, if appropriate, modify them whenever there exist ‘reasons of particular cogency that render the solutions previously adopted no longer sustainable: for example, the irreconcilability of precedents with the subsequent development of this Court's own case-law or that of the European Courts; the changed social or regulatory context in which the new decision is placed or – in any event – the supervening of circumstances, of a factual or regulatory nature, not previously considered; the matured awareness of the undesirable consequences produced by prior case-law (Judgment No. 203 of 2024, point 4.5 of the Considerations in Law; in the same sense Judgment No. 24 of 2025, point 3 of the Considerations in Law)’ ” (Judgment No. 2 of 2026; in the same sense, Judgment No. 202 of 2025).

24.– In the instant case, this Court considers that the prior line of case-law must be reconsidered, in light of the evolution of its own jurisprudence and the change in the general regulatory context. These new scenarios lead, in fact, to recognizing that the different conclusions previously reached regarding the bar scrutinized here, although grounded in solid regulatory foundations, are today no longer sufficient to prevent the unreasonable compression of the re-educational finalism of the sentence once again denounced by today's referring judge.

25.– Preliminarily, certain considerations set forth in Judgment No. 173 of 2021" must certainly be reaffirmed. First, that the provisions censured today ensure, at least in the decision determining the subsequent preclusive effect, a significant margin of discretion on the part of the surveillance judge, outside of any automatism incompatible with Article 27, third paragraph, of the Constitution. Furthermore, that the legislative mechanism under examination is "evidently conceived by the legislature as a deterrent against potential violations of the rules inherent to the measure” already granted, committed deliberately, "in the awareness of the burdensome consequences that the legal system attaches to such violation,” occurring during the re-educational path "that the convicted person must accomplish to gradually reintegrate into the social fabric: a path that also passes through making the convicted person responsible regarding the necessity of respecting the rules inherent to alternative measures already granted to them.”

26.– At the same time, the consolidation, in constitutional case-law, of the particular attention reserved to the natural evolution of each individual's personality must be recorded, articulated in the affirmation of the necessity not to inhibit for excessively prolonged periods the evaluation of the outcomes of the in-mural path, for the purpose of granting penitentiary benefits, with a view to respecting the cornerstone principle of treatment progressivity (*progressività trattamentale*).

26.1.– An expression of this growing sensitivity is Judgment No. 24 of 2025, not coincidentally cited by today's referring judge, which declared the constitutional illegitimacy of Article 30-ter, paragraph 5, of the Penitentiary Ordinances, according to which "In respect of individuals who during the enforcement of the sentence or restrictive measures have been convicted of or are charged with an intentional offense committed during the enforcement of the sentence or the enforcement of a measure restricting personal liberty, the granting [of reward leaves] is permitted only after two years have elapsed since the commission of the act.” The aforementioned ruling – while effecting a distinguishing with respect to the legislation scrutinized today, upon the central premise that the latter nevertheless ensures a significant scope of discretion to the surveillance judiciary in the decision-making phase leading to the subsequent bar – has, in fact, censured the nullification of "any evaluative margin on the part of the surveillance magistrate regarding the treatment path undertaken by the detainee and his residual social dangerousness” for two years from the commission of an offense, deeming such a lapse of time – which is moreover shorter than the three-year period examined here – "anything but negligible, for someone who spends their life in a prison.”

26.2.– Even more recently, Judgment No. 68 of 2026, in scrutinizing Articles 656, paragraph 9, letter a), of the Code of Criminal Procedure and 4-bis, paragraph 1-quater, of the Penitentiary Ordinances, which provides for the grant of certain penitentiary benefits to detainees for certain exclusionary offenses only in the event of a positive assessment "of the results of the scientific observation of personality conducted collegially for at least one year,” declared this second provision constitutionally illegitimate insofar as it applies to convicted persons for the offense referred to in Article 609-quater of the Criminal Code who have been recognized the special-effect mitigating circumstance referred to in the sixth paragraph of the same Article 609-quater of the Criminal Code. To reach this conclusion, it was observed, inter alia, that, in the event that the sentence concretely imposed is slightly longer than one year, "the censured rules can entail that the detainee has no possibility of accessing alternative measures substantially for the entire duration of the sentence, with obvious repercussions on the re-educational process.”

26.3.– The aforementioned rulings are symptomatic of a jurisprudential development that legitimizes, today, an assessment of intolerability, in light of the principles protected by Articles 3 and 27, third paragraph, of the Constitution, of the risk – already critically signaled by Judgment No. 173 of 2021 – that the three-year bar under examination "leads, in practice, to making improbable not only a second access to alternative measures, but also the enjoyment of the more limited benefits of reward leaves and external work from prison” during the enforcement of the sentence subsequent to the revocation of a previous alternative measure.

Not even today's referring judge disowns that at the root of the preclusive mechanism under examination there is, as highlighted by specific precedents on the matter (Judgment No. 173 of 2021 and Order No. 87 of 2004), a presumption of unreliability justified by the failure, attributable to the convicted person, of the alternative path to detention, which necessitates a temporary treatment regression.

However, in the face of a bar that, for a mandatorily three-year period, encompasses a large number of heterogeneous institutions (reward leaves, external work, and alternative measures to detention), the concentration of the prognostic space reserved to the surveillance judge solely at the moment of adopting the revocation order does not mesh well with the physiological changes of human personality: a personality which the censured provision instead presumes immutable for an excessive lapse of time, in light of this Court's recent rulings.

The rigidity of such a prolonged bar on access to new penitentiary benefits can indeed end up excluding any new judicial assessment of merit regarding them for the entire duration of the residual sentence to be served (as well as of the different sentence determined by a new enforcement order, according to the aforementioned legitimacy case-law formed on the current wording of the censured provision and applied in the case underlying the *quibus* proceedings).

During the sentence enforcement phase, by contrast, "the passage of time assumes a central role, which can entail significant transformations” in each individual's personality (Judgment No. 253 of 2019).

It is indeed entirely possible to imagine a positive evolution of the person, anticipated with respect to the lapse of the three years, even if only with regard to the grant of some among the various benefits currently encompassed within the prohibition, which require diversified assessments to be conducted, in concrete terms, on the basis of all circumstances emerging at the time of deciding on the relative applications (in this sense, Judgments No. 56 of 2021, No. 253 of 2019, and No. 291 of 2010; Order No. 97 of 2021).

Excluding the possibility of such a transformation means, therefore, unreasonably betraying "the gradualistic logic underlying the principle of ‘treatment progressivity and flexibility of the sentence,’ already adumbrated by numerous rulings of this Court (Judgments No. 257 of 2006, No. 255 of 2006, No. 445 of 1997, and No. 504 of 1995) as a corollary of the constitutional mandate according to which the sentence must tend toward the re-education of the convicted person” (Judgment No. 229 of 2019, pronounced on the different preclusive mechanism referred to in paragraph 4 of Article 58-quater of the Penitentiary Ordinances).

In other words, the current mechanism frustrates the very purpose of the in-mural observation deemed (once again) necessary: this too must, in fact, foster the construction of resocializing paths. This Court, moreover, has already affirmed that the re-educational function of the sentence must be articulated in the enforcement phase "as the necessity of constant valorization, by the legislature first and the judge later, of the progress achieved by the individual convicted person during the entire span of sentence enforcement” (Judgment No. 149 of 2018), including, therefore, the portion served subsequent to the revocation of a previous alternative measure.

27.– The evolution of the regulatory context also facilitates this Court in its decision to modify the line of case-law expressed in Judgment No. 173 of 2021.

27.1.– The referring judge invokes the discipline introduced by Legislative Decree No. 150 of 2022 concerning substitute penalties, with particular reference to the amended provision – Article 67, second paragraph, of Law No. 689 of 1981 – governing the effects of their revocation in the event of violation of imposed rules. He points out, in particular, that this legislation in the abstract does not prevent someone who is serving a custodial sentence, converted following revocation of the original substitute penalty, from accessing alternative measures, requiring solely the serving of half of the residual sentence.

This new mechanism, albeit relating to the quite different institution of the revocation of substitute penalties (with respect to which this Court has already ruled out the possibility of drawing comparisons under the principle of equality: Judgments No. 139 of 2025, No. 176, and No. 84 of 2024), likewise governs a "pathological” phase, connected to the violation of rules imposed during enforcement, balancing requirements entirely similar to those underlying the preclusive device consequential upon the revocation of alternative measures.

One can indeed agree with the referring judge when he states that, "in terms not dissimilar from what occurs in the judgment referred to in Article 51-ter of the Penitentiary Ordinances” for alternative measures to detention, non-compliance with rules inherent to a substitute penalty is subject to the discretionary scrutiny of the competent judge, who, following summary findings, can grade the effects of such conduct, not being under an obligation to revoke the measure ("if he deems it necessary to order revocation,” reads, in fact, Article 66, third paragraph, of Law No. 689 of 1981).

Once revocation has been ordered, and the substitute penalty converted, Article 67, second paragraph, of Law No. 689 of 1981 provides a temporal barrier of a duration equal to "half of the residual sentence” for access to alternative measures, always allowing the judge to give value also to any progress achieved during the temporary reinstatement of the custodial condition.

This mechanism, therefore, regardless of its aptitude to serve as a valid term of comparison for the purpose of an "obligated” upholding in light of the principle of equality, constitutes a solution already traceable within the legal system (and, at present, also the only one), adequate in relation to the reference parameters and capable of immediately remedying the *vulnera* encountered with respect to different principles.

In this regard, constitutional case-law, since Judgment No. 236 of 2016, has considered it possible, in order to avert the ascertained violation of a principle or a right recognized by the Constitution, to identify "precise points of reference,” to be utilized as solutions already existing in the legal system, even if referring to different institutions (Judgment No. 31 of 2025). All the more so when the protection of fundamental rights is at stake, precisely in the absence of "a single constitutionally bound solution capable of replacing the one declared illegitimate, such as that provided for a norm having identical structure and *ratio*, suitable to be assumed as a *tertium comparationis*,” the search for "adequate choices (*rime adeguate*)” becomes practicable (Judgment No. 222 of 2018; in the same sense, Judgment No. 40 of 2019).

In consistency with these principles, the balancing between the re-educational finality of the sentence and the safeguard of community defense, as concretized by Article 67, second paragraph, of Law No. 689 of 1981 in the different field of substitute penalties, allows for the introduction, at least pending legislative intervention, of a remedy for the ascertained vices of constitutional legitimacy of the censured provision, while ensuring at the same time the continuing operation of the bar, albeit within constitutionally tolerable limits, in compliance with the inspiriting logic of the legislature's choice (Judgments No. 128 of 2024, No. 28 of 2022, and No. 63 of 2021).

Finally, the referring judge is not wrong when he states that the inevitable weakening of the deterrent effect of the bar "as the end of the sentence approaches” – consequential upon upholding the raised questions in the terms formulated – does not exclude that social security requirements can be adequately protected "in the merits judgment before the surveillance judiciary.” In such proceedings, in fact, the prior revocation of the alternative measure to detention may in any event constitute a factual element "highly negative in prognostic terms, to overcome which the convicted person must provide adequate indices of subsequent treatment development.”

Naturally, possible intervention by the legislature is always reserved (among the latest, Judgment No. 116 of 2025), which, in any event in compliance with the constitutional principles enunciated herein, will be able to identify a different remedy, making any distinctions deemed appropriate in relation to the different measures and different benefits involved, also in light of the legitimacy orientations matured regarding the censured provision in its current wording.

28.– In conclusion, Article 58-quater, paragraph 3, of the Penitentiary Ordinances must be declared constitutionally illegitimate insofar as it provides that the prohibition on granting the benefits provided therein shall apply for a period of three years from the moment when "the revocation order indicated in paragraph 2 has been issued,” instead of "for a period equal to half of the residual sentence and, in any event, not exceeding three years, running from the moment when the revocation order indicated in paragraph 2 has been issued,” due to conflict with the principles of reasonableness and the re-educational finalization of the sentence pursuant to Articles 3 and 27, third paragraph, of the Constitution.

The maintenance of the three-year limit is required, as also highlighted by the referring judge, because, although most alternative measures to detention present, for the purpose of their grant, sentence limits (imposed or residual) contained within four years, there are some, such as semi-liberty, "which can be enjoyed even where the residual sentence is much greater”: so that if this final clause were not maintained, an even harsher discipline than the current one could result, with an inadmissible effect *in malam partem*.

29.– The questions raised with reference to the remaining parameters and profiles invoked are absorbed.

on those grounds

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares the constitutional illegitimacy of Article 58-quater, paragraph 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), insofar as it provides that the prohibition on granting the benefits provided therein shall apply for a period of three years from the moment when "the revocation order indicated in paragraph 2 has been issued,” instead of "for a period equal to half of the residual sentence and, in any event, not exceeding three years, running from the moment when the revocation order indicated in paragraph 2 has been issued”;

2) declares inadmissible the questions concerning the constitutional legitimacy of Article 58-quater, paragraph 3, of the Penitentiary Ordinances, insofar as it provides that the prohibition on granting the benefits provided therein shall apply from the moment when "the enforcement of custody or of the sentence is resumed,” raised, with reference to Articles 3, 13, and 27, third paragraph, of the Constitution, by the Surveillance Magistrate of Bologna, by the orders indicated in the headnotes.

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

Signed:

Giovanni AMOROSO, President

Antonella SCIARRONE ALIBRANDI, Author of the Judgment

Valeria EMMA, Registrar

Filed in the Registry on 24 July 2026

The Registrar

 

The anonymized version conforms in text to the original