JUDGMENT NO. 154

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 Article 162-ter, fourth paragraph, of the Criminal Code, brought by the Judge for Preliminary Investigations at the Ordinary Court of Reggio Emilia, in the criminal proceedings against M. S., pursuant to the order of 12 December 2025, registered under no. 14 of the 2026 register of orders and published in the Official Gazette of the Republic no. 6, 1st special series, for the year 2026.

Having regard to the appearance submitted by the President of the Council of Ministers;

having heard in chambers on 18 May 2026 the Judge Rapporteur Angelo Buscema;

having deliberated in chambers on 18 May 2026.

The Facts

1.– The Judge for Preliminary Investigations at the Ordinary Court of Reggio Emilia, by an order dated 12 December 2025, registered under no. 14 of the 2026 register of orders, raised questions as to the constitutional legitimacy of Article 162-ter, fourth paragraph, of the Criminal Code, with reference to Article 3 of the Constitution.

The referring judge reports that he is presiding over summary proceedings against a man charged with the offense referred to in Article 612-bis, second paragraph, of the Criminal Code (so-called stalking), for harassing conduct that led the injured party to lodge a criminal complaint on 9 September 2024; in connection with these facts, a precautionary measure was issued against the defendant imposing a prohibition on approaching places frequented by the injured party and a prohibition of communication.

At trial, the defense counsel for the defendant offered the injured party the sum of 10,000 euros by way of full compensation for the damage and requested a ruling declaring the offense extinguished pursuant to Article 162-ter of the Criminal Code (owing to reparatory conduct), while raising an exception of constitutional illegitimacy regarding Article 162-ter, fourth paragraph, of the Criminal Code in reference to Article 3 of the Constitution, insofar as it excludes the extinction of the offense through reparatory conduct for the crime set forth in Article 612-bis of the Criminal Code.

The counsel for the injured party, while accepting the sum offered, contested the adequacy of the compensation, denied the withdrawal of the complaint, and opposed the aforementioned extinguishing effect of the offense resulting from the said damage compensation.

1.1.– As regards the relevance of the questions of constitutional legitimacy, the *judge a quo* maintains that, should the challenges prove well-founded, the extinction of the offense pursuant to Article 162-ter of the Criminal Code could also be declared for the offense subject to the main proceedings (persecutory acts) upon the positive outcome of the reparatory conduct, even without the consent of the injured party.

1.2.– The questions are deemed not manifestly unfounded.

The referring judge notes that the scope of application of Article 162-ter of the Criminal Code is limited to cases involving offenses prosecutable upon a complaint that is subject to withdrawal, as expressly provided for by the first paragraph of the same article, should the injured party persist in their intent to punish. Furthermore, since the provisions of Article 162-ter of the Criminal Code make no distinction regarding the procedural or extra-procedural nature of the withdrawal of the complaint, the differing regime governing withdrawal is irrelevant for the purposes of applying the provision itself.

The referring judge further observes that, regarding the scope of application of the legal institution concerning the extinction of offenses through reparatory conduct, the new Article 162-ter of the Criminal Code applies to «all offenses prosecutable upon complaint: such a provision proceeds from the premise that the judge may "override” any persistence of the complainant’s punitive intent, where conduct is present that is capable of fully remedying the harm caused to the interests impaired by the offense». Therefore, neither the law nor its underlying rationale draws distinctions with regard to the legal interest impaired, establishing as the sole criterion for application the regime of prosecution upon a complaint subject to withdrawal, and consequently the principle of availability thereof, since these offenses are directed exclusively against individual interests at the disposal of the right-holder.

From this perspective, in the presence of conduct capable of fully remedying the injury inflicted upon the interests impaired by the offense, it would be possible to overcome the principle whereby the injured party holds an interest in having the defendant’s liability established.

The referring judge also points out that the offense of persecutory acts is the sole crime expressly excluded from the application of Article 162-ter of the Criminal Code: while the undisputed inapplicability of this provision to cases of ex officio prosecution and cases where the complaint is irrevocable remains firm, Article 1, paragraph 2, of Law no. 172 of 4 December 2017—converting Decree-Law no. 148 of 16 October 2017 (Urgent financial provisions and for urgent and unpostponable needs)—intervened by introducing the contested fourth paragraph of Article 162-ter of the Criminal Code to decree the total inapplicability of the provisions providing for the extinction of offenses through reparatory conduct in relation to the crime of persecutory acts.

To date, asserts the *judge a quo*, the said offense is the only one excluded from the application of this rule, and this creates an unreasonable disparity compared to other categories of offenses—such as that under Article 612-ter of the Criminal Code (Illicit dissemination of sexually explicit images or videos)—for which Article 162-ter of the Criminal Code is instead applicable.

The circumstance that, in the offense of persecutory acts pursuant to Article 612-bis of the Criminal Code, the withdrawal of the complaint can only be procedural cannot, in the referring judge's view, reasonably justify the exclusion of the application of Article 162-ter of the Criminal Code.

The *judge a quo* observes that the prosecution regime for the offense of persecutory acts is mixed and, as such, is comparable to other criminal offenses that infringe upon the person and the legal interest of moral freedom, such as private violence, threats, the illicit dissemination of sexually explicit images or videos, as well as others such as personal injury and trespass. Moreover, with regard to the withdrawal of the complaint—which, as for the crime of persecutory acts, is exclusively procedural—the offense of persecutory acts shares an affinity with that of the illicit dissemination of sexually explicit images or videos under Article 612-ter of the Criminal Code.

The provision of distinct prosecution regimes for the offense of persecutory acts—ex officio, upon irrevocable complaint, and upon revocable complaint, graduated according to the severity of the conduct—in cases where the initiative remains at the disposal of the injured party, casts doubt on the constitutional legitimacy of the provision under the standard of reasonableness where it excludes the extinction of the offense through reparatory conduct.

Basing the rationale for the differential treatment of the offense of persecutory acts on its structural nature, as a continuous offense requiring a resulting event, and thus upon the extent of the harm and resulting damage, would be unsatisfactory, because—the referring judge observes—this would lead to an aprioristic automatism in evaluating the severity of the harm caused to the victim, given that the statutory penalty thresholds for the compared provisions under Articles 612-bis and 612-ter of the Criminal Code are virtually overlapping. Indeed, it is evident that the distinct offense of illicit dissemination of sexually explicit images or videos carries extensive offensive potential, since such unauthorized dissemination of private imagery may occur beyond the sphere of the injured party’s awareness and even outside the control of the author themselves.

The referring judge observes that, although an inherent evaluation of the offender's dangerousness—precluding procedures with extinguishing effects—might be implicit in the choice to exclude the offense of persecutory acts from the scope of Article 162-ter of the Criminal Code, such an assumption would nevertheless be incorrect, since the offense remains, in certain hypotheses, prosecutable upon a complaint subject to withdrawal which, if exercised, would in any event lead to extinguishing effects.

Furthermore, pursuant to Article 165 of the Criminal Code, the offense of persecutory acts falls within the category of crimes for which, in the event of conviction, the conditional suspension of the sentence is always subordinated to participation in prevention courses; among these is also included the crime of aggravated personal injury pursuant to Articles 582, 577, first paragraph, number 1), and second paragraph, of the Criminal Code, which, however, being prosecutable upon a complaint subject to withdrawal, falls within the scope of application of Article 162-ter of the Criminal Code.

The lack of manifest unfoundedness is also demonstrated by the assimilation—in terms of the inapplicability of Article 162-ter of the Criminal Code—of various acts of persecutory conduct, despite their divergence in terms of modus operandi, objective gravity, and differing prosecution regimes. Furthermore, individuals accused of offenses that are similarly offensive to those provided for under Article 612-bis of the Criminal Code could achieve extinguishing effects through the performance of reparatory conduct in favor of the victim, whereas this is not permitted for the offense under examination.

The judge's power to override the interest of the holder of the protected legal interest in having the criminal responsibility of the offender established—the referring judge further observes—could well be justified by valorizing the other interest of the injured party, namely that of securing the performance, in their favor, of reparatory conduct achievable through the compensation of the damage caused by the offense and the elimination, where possible, of the harmful or dangerous consequences of the crime.

The judge's power to override the punitive intent of the injured party would be founded on the principle of subsidiarity of the penal instrument, according to which punishment should not be applied if preventive purposes can be achieved through less afflictive instruments. This would allow for the creation of «incentives for conduct satisfying the reasons of injured parties and aggrieved persons, to be implemented through compensation, restitution, and the elimination of the consequences of the offense», thereby supporting deflatory instances while reinforcing the concept of restorative justice, by attributing to the proceedings a conciliatory function between the author and the victim of the crime.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, requesting that the questions be declared unfounded.

The State defense observes that the reforming intervention of 2017 unfolded through two diachronic regulatory innovations: the first introduced a favorable criminal provision, while the second, approved in rapid chronological succession, imposed a limit on the applicability of that same provision.

The legislative reform pursues the intent to ensure greater protection for the victim, leaving intact their dominion over the prosecutability of the offense, without allowing the unilateral initiative of the defendant to affect the course of the proceedings.

The contested provision, according to the State Attorney General, is neither vitiated by manifest unreasonableness due to disproportion nor, much less, does it create an unreasonable disparity of treatment when compared with the *tertium comparationis* invoked by the referring judge.

As to the first aspect, the State Attorney General asserts that Article 162-ter of the Criminal Code eliminates, during the course of the proceedings, the immediate and direct link between the victim's will—expressed through their powers to lodge, waive, and withdraw a complaint—and the prosecutability of the offense, by introducing into this procedural sequence a heteronomous element, namely the unilateral will of the perpetrator of the crime who, under the court's supervision, may extinguish the offense by means of damage compensation; removing the crime of persecutory acts, even in its basic form, from this regime is not a manifestly unreasonable choice, but rather a rational and proportionate one, which takes into account a peculiar characteristic of this criminal category, namely the centrality of the injured party in light of the particular methods by which the protected legal interest is infringed and the specific relationship that normally exists between the perpetrator and the victim, i.e., a prior affective relationship.

The legislature, in the immediate aftermath of the introduction of this new ground for the extinction of the offense, deemed that there existed a potential protection vacuum and an underlying incoherence in the sanctioning response, arising from the concrete application to persecutory acts of an institution that disrupts the sequence between the victim's will and the prosecutability of the offense, due to the introduction of a heteronomous element, namely the perpetrator's will, through mere compensation offered by the defendant themselves.

In light of these characteristics of the crime in question, the purpose pursued by the contested provision—namely, safeguarding the victim of the crime of persecutory acts from the unilateral "extinguishing" will of the defendant—is not manifestly unreasonable, since in this particular category of offense, the ultimate arbiter of the criminal prosecutability of the offender can only be the victim themselves.

Furthermore, contrary to what was suggested by the *judge a quo*, it is precisely within the structure of persecutory acts that the peculiarity underpinning the choice of the contested provision is to be sought. Indeed, it is the event produced within the intimate sphere of the injured party—a state of anxiety or fear, apprehension for their own safety or that of a person linked to them, or the coercion to alter their lifestyle habits—that advises against leaving the choice regarding *an* of the further criminal relevance of the committed persecutory acts to the unilateral compensatory will of the defendant, since only the victim is able to weigh the actual significance of the events caused within their own intimate sphere by the repeated harassment or threats of the defendant.

As regards the alleged unreasonableness of the contested provision due to disparity compared to the offenses proposed as *tertium comparationis*, in the opinion of the State Attorney General, the challenge is unfounded both because the compared offenses are mutually heterogeneous, and because the particular nature of the offense—at times a sentinel crime signaling progression toward the murder of the victim—does not permit the application of the favorable institution of offense extinction via pecuniary compensation, as it is inconsistent with the protection of the injured party and with the general and special prevention functions against the crime set forth in Article 612-bis of the Criminal Code.

The State defense observes that the judicial review of a favorable criminal institution, in its conformation and boundaries, given the typically political nature of the evaluations underlying the determination of sanctioning treatment, falls within the discretion of the legislature and is censurable only if it lapses into manifest unreasonableness or arbitrariness, a circumstance that does not occur in the present case. On this point, the State defense recalls the case law of the Constitutional Court according to which, in order to directly scrutinize the merits of sanctioning choices, it is necessary that the legislative option manifestly conflicts with the canon of reasonableness, through a distorted use of legislative discretion.

The Law

3.– The Judge for Preliminary Investigations at the Court of Reggio Emilia raised, by the order indicated in the heading (reg. ord. no. 14 of 2026), questions concerning the constitutional legitimacy of Article 162-ter, fourth paragraph, of the Criminal Code, in reference to Article 3 of the Constitution, for violation of the principles of reasonableness and equality.

The *judge a quo* considers that the aforementioned Article 162-ter, fourth paragraph, of the Criminal Code violates Article 3 of the Constitution inasmuch as it establishes that the provisions concerning the extinction of the offense through reparatory conduct «shall not apply in the cases referred to in Article 612-bis».

3.1.– The referring judge deems that the questions of constitutional legitimacy are relevant because, should the challenges prove well-founded, he could declare the extinction of the offense of persecutory acts (Article 612-bis of the Criminal Code) on the grounds of the positive outcome of the reparatory conduct, even without the consent of the injured party.

3.2.– As regards the manifest unfoundedness, the *judge a quo* notes that the offense of persecutory acts was expressly excluded from the application of Article 162-ter of the Criminal Code, whereas such exclusion is not provided for other criminal offenses that infringe upon the person or the very legal interest of moral freedom, whose prosecution regime is comparable to that of the offense referred to in Article 612-bis of the Criminal Code.

The referring judge further observes that the offense under examination is comparable to that of illicit dissemination of sexually explicit images or videos (Article 612-ter of the Criminal Code) and that, nevertheless, while extinction through reparatory conduct is provided for this criminal category, such an institution is not applicable to the crime of persecutory acts. This disparity in treatment is unjustified and, therefore, breaches Article 3 of the Constitution.

Basing the rationale for the differential treatment of the offense of persecutory acts on its structural nature, characterized by continuity and a resulting event, would also give rise to an aprioristic automatism in evaluating the severity of the harm caused to the injured party, given the virtually overlapping statutory penalty thresholds for the compared categories, namely those provided for under Articles 612-bis and 612-ter of the Criminal Code.

Moreover, individuals accused of offenses that are similarly offensive compared to the criminal category under Article 612-bis of the Criminal Code, such as private violence, threats, and the illicit dissemination of sexually explicit images or videos, could achieve extinguishing effects through the performance of reparatory conduct in favor of the injured party, whereas producing such an effect is not permitted for the authors of the offense of persecutory acts. This would introduce an automatic presumption of intrinsic dangerousness on the part of the perpetrator of the crime in question.

3.2.1.– The provision of distinct prosecution regimes for the offense referred to in Article 612-bis of the Criminal Code—ex officio (if the act is committed against a minor or a person with disabilities, or when the act is connected with another crime that must be prosecuted ex officio), upon an irrevocable complaint (if the act was committed by means of repeated threats in the ways referred to in Article 612, second paragraph, of the Criminal Code), and upon a revocable complaint in all other cases—would also cast doubt on the reasonableness of the provision which, even in cases where prosecution remains at the disposal of the injured party, contemplates the identical exclusion of the extinguishing effect of the offense following reparatory conduct.

4.– It is necessary first to provide a concise reconstruction of the relevant regulatory framework.

4.1.– Article 162-ter, entitled «[e]xtinction of the offense through reparatory conduct», was inserted into the Criminal Code by Article 1, paragraph 1, of Law no. 103 of 23 June 2017 (Amendments to the Criminal Code, the Code of Criminal Procedure, and the Penitentiary System). The provision establishes that, in cases of offenses prosecutable upon a complaint subject to withdrawal, the judge shall declare the offense extinguished, «after hearing the parties and the injured party, when the defendant has fully repaired, by the ultimate deadline of the declaration opening the first-instance trial, the damage caused by the offense, through restitutions or compensation, and has eliminated, where possible, the harmful or dangerous consequences of the offense» (first paragraph, first period). The temporal limit of the opening of the trial may be overcome if the defendant demonstrates that they were unable to comply earlier due to a fact not imputable to them: in which case they may request the judge to fix a further term, not exceeding six months, to provide for the payment, even in installments, of the amount due by way of compensation (second paragraph).

The extinguishing ground thus introduced is modeled upon the analogous institution previously provided for offenses within the jurisdiction of the Justice of the Peace by Article 35 of Legislative Decree no. 274 of 28 August 2000 (Provisions on the criminal jurisdiction of the Justice of the Peace, pursuant to Article 14 of Law no. 468 of 24 November 1999), though differing therefrom in two significant respects for present purposes.

Firstly, it is expressly provided that damage compensation may be recognized «even following a formal offer pursuant to Articles 1208 and following of the Civil Code, formulated by the defendant and not accepted by the injured party, where the judge recognizes the adequacy of the sum offered under such title» (Article 162-ter, first paragraph, second period, of the Criminal Code). This provision—together with the fact that the new institution is designed to operate solely for crimes prosecutable upon a complaint susceptible to withdrawal, where such withdrawal has not taken place—makes it clear that the extinction of the offense must be declared even if the injured party opposes it: a conclusion that case law had reached regarding the institution under Article 35 of Legislative Decree no. 274 of 2000 only after initial interpretive uncertainties (Court of Cassation, United Criminal Sections, judgment no. 33864 of 23 April–31 July 2015).

Secondly, the 2017 legislature did not entrust the criminal judge with an evaluation similar to that which the aforementioned provision requires of the Justice of the Peace, concerning the suitability of the reparatory conduct «to satisfy the requirements of reprobation for the offense and those of prevention»: that is, essentially, to respond to the "demand for punishment" arising from the community and to represent a sufficiently dissuasive measure for the perpetrator.

The extinguishing ground outlined by Article 162-ter of the Criminal Code therefore leaves no margin of discretion, beyond that inherent in verifying the "adequacy" of the patrimonial performance offered. Once the latter is ascertained, any further assessment is precluded to the judge, since the full extinction of civil obligations, with the elimination (where possible) of the harmful or dangerous consequences of the crime, produces the extinguishing effect automatically.

In primarily pursuing objectives of procedural deflation, the institution in question thus falls within the scope of measures intended to valorize, in a "rewarding" key, *post factum* reparation understood in an "objective-patrimonial" sense. Differently, moreover, from what occurs with the institution of "restorative justice" introduced by 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 conclusion of judicial proceedings), the one under discussion does not in itself constitute a form of mediation aimed at resolving the interpersonal conflict of which the crime is an expression. Although it may concretely produce effects in that direction, the institution manifests its value primarily in cases where a common conciliatory will is lacking: it allows the defendant to overcome, through conduct deemed by the judge to be fully reparatory, the persistent "request for punishment" of the injured party, who does not intend to withdraw the complaint despite the reparatory intent expressed by the defendant, thereby essentially attributing to objective reparation a function substituting punishment.

4.2.– Given such a connotation of the institution, the extinguishing ground was originally capable of operating also in relation to the crime of persecutory acts, provided for by Article 612-bis of the Criminal Code.

This latter provision, introduced by Article 7, paragraph 1, of Decree-Law no. 11 of 23 February 2009 (Urgent measures for public security and to combat sexual violence, as well as regarding persecutory acts), converted with amendments into Law no. 38 of 23 April 2009, and subsequently amended several times (most recently by Law no. 181 of 2 December 2025, containing «Introduction of the crime of femicide and other regulatory interventions to combat violence against women and for the protection of victims»), punishes, in its first paragraph, «anyone who, through repeated conduct, threatens or harasses someone in such a way as to cause a enduring and serious state of anxiety or fear, or to engender a well-founded fear for their own safety or that of a close relative or a person linked to them by an affective relationship, or to compel them to alter their lifestyle habits».

Through this incrimination, the legislature intended to «fill a protection vacuum regarding persecutory, harassing, and invasive behaviors directed at the lives of others», capable of producing the legally indicated events, of which the victims are above all, though not exclusively, women (judgment no. 172 of 2014), as indeed in the case subject to the proceedings *a quo*, concerning an act committed by a person already linked to the victim by an affective relationship, in the face of her refusal to resume it. The incriminatory provision thus represents, in common appreciation, a fundamental instrument in combating gender and domestic violence—also in correlation with the possible risk of progression of the incriminated behaviors toward more serious violent crimes (judgment no. 173 of 2024)—aligning with the provisions established by the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), ratified and made executive by Law no. 77 of 27 June 2013 (Ratification and execution of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, done at Istanbul on 11 May 2011), Article 34 of which specifically obliges State Parties to adopt «the legislative or other measures necessary to penalize intentional repeated threatening conduct directed at another person causing her to fear for her safety».

However, from the perspective of protecting the very interest of the injured party, «who might not wish intimate aspects of their private life to be scrutinized within criminal proceedings» (judgment no. 123 of 2025), the crime is prosecutable upon complaint, unless it is committed against a minor or a person with disabilities, or is connected with another crime that must be prosecuted *ex officio*. Conversely, moreover, from what occurs in the case of sexual violence (Article 609-septies, third paragraph, of the Criminal Code), the complaint is subject to withdrawal (albeit solely procedural), unless the act is committed by means of serious repeated threats, in the sense indicated by Article 612, second paragraph, of the Criminal Code (Article 612-bis, fourth paragraph, of the Criminal Code).

Initially, there was consequently significant scope within which the defendant could evade criminal liability for the offense in question through reparatory compliance, even against the will of the injured party who, renouncing her privacy, had lodged the criminal complaint.

The legislature, however, promptly deemed it necessary to prevent such an outcome. A few months after the launch of the new institution, Article 1, paragraph 2, of Law no. 172 of 4 December 2017 (Conversion into law, with amendments, of Decree-Law no. 148 of 16 October 2017, containing urgent provisions on financial matters and for urgent and unpostponable needs. Amendment to the discipline of the extinction of the offense through reparatory conduct) added a fourth paragraph to Article 162-ter of the Criminal Code, which specifically removes the crime of persecutory acts from the scope of application of the extinguishing ground («[t]he provisions of this article shall not apply in the cases referred to in Article 612-bis»).

And it is precisely against this provision that the challenges of the present referring judge are directed.

5.– This having been premised, regarding the merits of the challenges, it is necessary to assess, first of all, whether the provision establishing that the crime of persecutory acts (when prosecutable upon a complaint subject to withdrawal) cannot be extinguished through the reparatory conduct referred to in Article 162-ter of the Criminal Code constitutes a violation of the principle of reasonableness under Article 3 of the Constitution.

This question is not well-founded.

5.1.– In this regard, it is preliminarily worth recalling that, according to the consistent case law of this Court, the legislature enjoys broad discretion in regulating grounds for the extinction of offenses and, broadly speaking, grounds for non-punibility (regarding the conditional suspension of sentence, judgment no. 32 of 2026; regarding the suspension of proceedings with probation, judgments no. 30 of 2026, no. 191, no. 157, and no. 90 of 2025; regarding the exclusion of punibility for particular tenuity of the fact, judgments no. 44 and no. 5 of 2026, and no. 172 of 2025).

This discretion manifests itself, in a particular way, regarding the definition of the objective limits of operation of individual institutions, referred not only to statutory penalty levels but also to specific titles of crimes (judgments no. 191 and no. 157 of 2025).

5.2.– As regards the discipline under examination, it must be highlighted, firstly, that in the case of the crime of persecutory acts, prosecution upon complaint, as already anticipated (supra, point 4.1.), constitutes a choice of the legislature dictated by the desire to allow the victim to protect their privacy, avoiding intimate aspects of their private life becoming the subject of examination within criminal proceedings, regardless of the severity of the criminal act.

As repeatedly affirmed by the case law of this Court, greater or lesser severity constitutes, in fact, only one of the possible criteria that the legislature may adopt in deciding upon the prosecutability of individual offenses, meaning that there is no necessary correspondence between minor offenses and prosecution upon complaint, nor between serious offenses and *ex officio* prosecution (judgments no. 9 of 2025 and no. 220 of 2015).

Indeed, the crime of persecutory acts, even in its concrete expressions endowed with lesser offensiveness, remains nonetheless an unlawful act of significant gravity, since for its configuration it must in any case result in a state of anxiety or fear, apprehension for safety, or an alteration of the victim's lifestyle habits. In the absence of such events, there would arise, at most, only the lesser crimes of threats (Article 612 of the Criminal Code) or harassment or disturbance of persons (Article 660 of the Criminal Code).

The significant offensive scope of the crime of persecutory acts has been highlighted by this Court in affirming that «[w]ith the special offense referred to in Article 612-bis of the Criminal Code, the legislature further characterized the conduct of threats and harassment, requiring that they be carried out in a repeated manner and capable of causing at least one of the events indicated in the normative text (a state of anxiety or fear, apprehension for safety, and changes in lifestyle habits). This further characterization is aimed at identifying specific phenomena of harassing behavior characterized by a predatory attitude toward the victim, well expressed by the English term "stalking”, which is usually used to describe this criminal behavior. The peculiarities that distinguish threats and harassment in these cases expose the victim to consequences in their emotional life (state of anxiety and fear or apprehension for safety) and practical life (change of lifestyle habits), which represent events identified by the legislature precisely in order to better circumscribe the new area of illegitimacy, characterized by aggravated disvalue compared to generic threats and harassment, and which therefore justify a more severe penal reaction» (judgment no. 172 of 2014).

It must also be observed that this Court is not called upon so much to evaluate whether or not the contested provision is unreasonable insofar as it alters the symmetry between prosecution upon complaint, gravity of the offense, and the possibility of extinguishing it through reparatory conduct, but rather whether it is unreasonable that the offense under examination cannot be extinguished through the aforementioned conduct.

By excluding the possibility that the crime set forth in Article 612-bis of the Criminal Code may be extinguished through reparatory compliance despite the dissent of the injured party who lodged the criminal complaint, the legislature intended to maintain a high level of protection offered by an incriminatory provision that, as highlighted (supra, point 4.2.), fulfills a role of particular importance—urged, moreover, by international regulations—in combating gender and domestic violence.

Even outside this context, the crime provided for by Article 612-bis of the Criminal Code presents, furthermore, a particular structure, correlated to its criminological matrix, which has rendered the operation of the extinguishing ground in question inexpedient. In the face of a continuous offense requiring a resulting event that expresses a persecutory attitude, attributing extinguishing efficacy to unilateral reparatory conduct—independently of any judicial evaluation regarding their suitability to represent a sufficiently dissuasive measure toward the offender (supra, point 4.1.)—implies the risk that the victim remains in a perpetual state of anxiety or fear, since the offender might be induced to repeat the unlawful act, trusting in the ability to benefit once again, upon compensating the damage, from the extinction of the offense.

5.3.– Nor, still in the sense of excluding the intrinsic unreasonableness of the choice made by the legislature with the contested provision, can one overlook the circumstance that, as likewise highlighted in the case law of this Court, the crime of persecutory acts is characterized «by the unpredictable and not rare progression from the sentinel crime (typically stalking) to a violent crime of blood» (judgment no. 173 of 2024).

6.– The considerations just set forth also serve to exclude the possibility that the denounced violation of Article 3 of the Constitution can be perceived under the profile of unreasonable equalization of treatment, as regards the removal from the extinguishing ground, between hypotheses that, within the same Article 612-bis of the Criminal Code, diverge in terms of modus operandi, objective gravity, and prosecution regime.

The reasons that, in legislative consideration, justify the choice adopted are, in fact, discernible in relation to the generality of facts encompassed within the scope of application of the incriminatory norm, in particular in relation to those for which the prosecution regime upon a complaint susceptible to withdrawal by the injured party operates.

7.– The referring judge also complains of a violation of the principle of equality under the profile of unreasonable disparity of treatment, first and foremost in relation to the crime referred to in Article 612-ter of the Criminal Code, which is not removed from the application of the extinguishing ground.

This challenge is likewise unfounded.

According to what has been recently specified by this Court, the model of the equality review in the strict sense (understood, that is, as a comparison between legal categories) «finds at its core the concept of pertinence, since it can be held that the regulatory treatment of one category is discriminatory in relation to that of another category only to the extent that the comparison with such second category is indeed pertinent»; and pertinence must be determined also taking into consideration «the requirements of systematic coherence and the aims pursued by the norm subject to constitutional legitimacy review and by that assumed as the *tertium*, which must be coherent and at least not unworthy of constitutional protection» (judgments no. 85 and no. 54 of 2026).

In the present case, this connotation of pertinence is lacking. Beyond the common elements linked to its placement among crimes against moral freedom, the configuration of special aggravating circumstances, and the regulation of the complaint, the *tertium comparationis* invoked by the *judge a quo* clearly presents heterogeneity as regards specific legal objectivity, the structure of the category, and the characteristics of the incriminated conduct: profiles that were taken into consideration by the legislature in rendering the extinguishing ground under examination inapplicable to the crime of persecutory acts (supra, points 5.2. and 5.3.).

Article 612-ter of the Criminal Code, introduced by Article 10, paragraph 1, of Law no. 69 of 19 July 2019 (Amendments to the Criminal Code, the Code of Criminal Procedure, and other provisions regarding the protection of victims of domestic and gender violence), punishes, under the heading «[i]llicit dissemination of sexually explicit images or videos», the conduct of anyone who, «after having produced or obtained them, sends, delivers, assigns, publishes, or disseminates sexually explicit images or videos, intended to remain private, without the consent of the persons portrayed» (first paragraph); as well as the conduct of anyone who, having received or otherwise acquired the aforementioned images or videos, «sends, delivers, assigns, publishes, or disseminates them without the consent of the persons portrayed for the purpose of causing them harm» (second paragraph).

This is, therefore, an offense infringing upon the specific interest in privacy within the sexual sphere, which may be consummated, unlike persecutory acts, in a single act, even of an occasional nature, and which is perfected independently of prejudicial events on a psychological level or regarding changes in lifestyle habits, which are instead necessary for the configuration of the crime referred to in Article 612-bis of the Criminal Code, as already highlighted.

It must therefore be excluded that the different treatment reserved to the two criminal figures regarding the possibility of extinguishing the offense through reparatory conduct can be considered a source of the denounced constitutional *vulnus*.

8.– A fortiori must the unfoundedness of the further and concluding challenge by the referring judge be excluded, concerning the unjustified disparity of treatment of the crime of persecutory acts compared to other crimes against the person that are «similarly or more offensive» and likewise subject to a «mixed» prosecution regime, to which the extinguishing ground instead remains applicable, such as private violence and threats, or even personal injury and trespass.

Aside from noting that these are also, in such cases, criminal figures manifestly heterogeneous compared to the crime of persecutory acts, and furthermore objectively less serious in view of their respective statutory penalty frameworks, which are significantly lower than that currently provided for by Article 612-bis of the Criminal Code (imprisonment from one year to six years and six months), it is observed that the considerations developed regarding the peculiarities of the crime of persecutory acts nevertheless apply, rendering the legislature's decision to exclude it from the category of criminal offenses for which extinction through reparatory conduct is possible not unreasonable.

Therefore, the mere circumstance of sharing a mixed prosecution regime or partial identity of the protected legal interest with other criminal categories is irrelevant for the purpose of affirming the unreasonableness of the contested provision.

9.– The questions submitted for the examination of this Court must therefore be declared unfounded.

on these grounds

THE CONSTITUTIONAL COURT

declares unfounded the questions concerning the constitutional legitimacy of Article 162-ter, fourth paragraph, of the Criminal Code, raised, in reference to Article 3 of the Constitution, by the Judge for Preliminary Investigations at the Ordinary Court of Reggio Emilia, by the order indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 18 May 2026.

Signed:

Giovanni AMOROSO, President

Angelo BUSCEMA, Author of the Judgment

Valeria EMMA, Registrar

Filed in the Registry on 25 September 2026