RULING NO. 162
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, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following
RULING
in the proceedings concerning the constitutional legitimacy of Article 649, third paragraph, of the Criminal Code, brought by the Court of Appeal of Turin, Fourth Criminal Section, in the criminal proceedings against A. S., by order of December 10, 2025, registered under No. 35 of the 2026 register of orders and published in the Official Journal of the Republic No. 10, 1st Special Series, of the year 2026, the hearing of which was scheduled for the in-chambers session of July 6, 2026.
Having heard in the in-chambers session of July 7, 2026, Judge Rapporteur Filippo Patroni Griffi;
Deliberated in the in-chambers session of July 7, 2026.
Whereas, by order of December 10, 2025, registered under No. 35 of the 2026 register of orders, the Court of Appeal of Turin, Fourth Criminal Section, raised questions of constitutional legitimacy—with reference to Articles 2, 3, and 29 of the Constitution—regarding Article 649, third paragraph, of the Criminal Code, to the extent that it does not include, among the offenses to which the cause of exclusion of punishment provided for in the first paragraph of the same article does not apply, the crime of fraud against an incapable person pursuant to Article 643 of the Criminal Code;
whereas the referring judge—seised of the appeal against a first-instance judgment convicting a man of the crime of fraud against an incapable person, committed to the detriment of his wife, who at the material time was already suffering from moderate-to-severe intellectual disability—held, contrary to the first-instance judge, that the conditions for applying the ground of non-punishment set forth in the first paragraph of Article 649 of the Criminal Code were met, thereby adhering to the majority jurisprudential trend according to which threats or mere psychological violence do not preclude the applicability of the ground of non-punishment and of the requirement of a private complaint for property offenses committed against close relatives, given that the exclusionary clause set forth in Article 649, third paragraph, of the Criminal Code operates only when the act is committed with physical violence (Court of Cassation, Second Criminal Section, judgments of October 19–December 13, 2023, No. 49651; March 9–May 25, 2023, No. 22927; February 27–March 15, 2019, No. 11648; May 10–July 24, 2013, No. 32354; February 11–May 24, 2011, No. 20481; Sixth Criminal Section, judgments of March 24–April 29, 2021, No. 16469; April 5–June 11, 2018, No. 26619, and, with specific reference to the crime of fraud against an incapable person, Court of Cassation, Second Criminal Section, judgment of January 28–February 25, 2022, No. 6886);
whereas, in the opinion of the judge a quo, the questions are relevant because, should they be upheld, while the original non-punishment regime for the defendant under Article 2 of the Criminal Code would remain unaffected, the declaration of constitutional illegitimacy of the favorable provision would affect the reasoning of the acquittal judgment and the formula of acquittal;
whereas, deeming excluded—also in light of the aforementioned case law—the possibility of a constitutionally oriented interpretation, the referring panel perceives the non-manifestly unfounded nature of the questions of constitutional legitimacy of Article 649, third paragraph, of the Criminal Code, insofar as it fails to include, among the offenses to which the ground of exclusion of punishment provided for in the first paragraph of the same article does not apply, the crime of fraud against an incapable person under Article 643 of the Criminal Code;
whereas this omission allegedly conflicts, firstly, with Article 3 of the Constitution, on several grounds;
whereas, primarily, the challenged provision would, on the one hand, create a disparity in treatment between perpetrators of the crime of fraud against an incapable person and perpetrators of the crimes contemplated in the third paragraph of Article 649 of the Criminal Code and, on the other hand, unreasonably equate the perpetrator of the crime of fraud against an incapable person with the perpetrator of other property offenses not characterized by violence;
whereas, furthermore, it would guarantee absolute protection to the family unit at the expense of punishing acts detrimental to the property of others, in an unreasonably anachronistic manner that fails to meet the need to guarantee individual rights and the very duties of respect and solidarity that should find their best fulfillment precisely within the family;
whereas, from another perspective, it would unreasonably exclude from the scope of non-application of the ground of non-punishment precisely the crime of fraud against an incapable person, which, compared to other property offenses, is characterized by greater insidiousness, given that the victim of the offense, due to conditions of infirmity or psychic deficiency—and thus of diminished defensive capacity—finds it impossible not only to realize that they have been manipulated but even to seek help and protection from public authorities;
whereas a further profile of unreasonableness would stem from the incoherence of the challenged provision with more recent legislative interventions, also concerning areas extraneous to the criminal legal system, aimed at ensuring greater protection for vulnerable persons and providing, both substantively and procedurally, enhanced protection in favor of incapable subjects: such as, for example, the institution of support administration (*amministrazione di sostegno*) or, within the criminal sphere, the condition of particular vulnerability of the victim pursuant to Article 90-quater of the Code of Criminal Procedure, as well as the maintenance of ex officio prosecution, when committed to the detriment of "persons incapable by reason of age or infirmity," for a series of offenses for which prosecution by private complaint is otherwise required (Articles 624, third paragraph, and 649-bis of the Criminal Code);
whereas Article 29 of the Constitution would likewise be violated with regard to the "principle of moral and legal equality between spouses, an equality that deserves to be protected even in cases where one spouse takes advantage of the other's condition of incapacity for personal gain," as well as the solidarity principle referred to in Article 2 of the Constitution, given the "necessity of devising specific protections in favor of fragile and vulnerable subjects so that their inviolable rights—of which moral freedom and the freedom of self-determination are expressions—find full protection and opportunity for manifestation, especially within the social formations in which their personality develops";
whereas the President of the Council of Ministers has not intervened in the proceedings.
Considering that, as a preliminary matter, it is necessary to verify the admissibility of the raised questions, with specific reference to this Court's margin of intervention regarding favorable criminal provisions (*norme penali di favore*);
whereas, in this regard, the principle of legality in criminal matters referred to in Article 25, second paragraph, of the Constitution does not preclude the adoption of decisions ablating provisions that exempt certain groups of subjects or conduct from the scope of application of a general incriminatory norm, granting them more lenient treatment, as occurs, for example and insofar as relevant here, through the provision of a ground of non-punishment (ex pluribus, judgments No. 95 of 2025, No. 8 of 2022, and No. 394 of 2006; order No. 106 of 2024);
whereas in such cases, in fact, no intrusion occurs into the sphere reserved to the legislature (Article 28 of Law No. 87 of March 11, 1953, laying down "Norms on the constitution and functioning of the Constitutional Court"), since the statutory reservation (*riserva di legge*) regarding criminal policy choices is not undermined;
whereas, under such circumstances, the *in malam partem* effect does not derive from the introduction of new rules, but rather, as an automatic consequence, from the re-expansion of the incriminatory norm following the declaration of constitutional illegitimacy of the provision that delimited its scope of application;
whereas, therefore, the *in malam partem* effect is the result of the legal system's natural reaction to the annulment of the constitutionally illegitimate norm (ex pluribus, judgments No. 155 of 2019, No. 5 of 2014, No. 57 of 2009, No. 324 of 2008, No. 394 of 2006, and No. 148 of 1983);
whereas, as a consequence of the aforementioned phenomenon, the incriminatory offense that re-expands following the declaration of constitutional illegitimacy is an expression of the legislature's own original choice, thus precluding any creative or additive intervention in punitive matters by this Court;
whereas, therefore, as already affirmed by constitutional jurisprudence (ex pluribus, again judgments No. 155 of 2019, No. 5 of 2014, No. 57 of 2009, No. 324 of 2008, No. 394 of 2006, and No. 148 of 1983), if the ground of non-punishment is eliminated (or, in any event, the perimeter of its operational area is affected), the general rule re-expands, and the conduct covered by the ground of non-punishment (declared constitutionally illegitimate) falls back within the (broader) area of penal relevance originally delineated by the legislature;
whereas, furthermore, under such circumstances, judicial review serves to prevent the existence of "safe havens" exempted from the control of constitutional legitimacy (judgment No. 394 of 2006);
whereas the foregoing is independent of the path leading to this result and applies both when the re-expansion of the general rule derives from an ablative declaration of constitutional illegitimacy (in whole or in part) of the favorable criminal provision, and when it derives from a declaration of constitutional illegitimacy that extends a derogating provision to further hypothetical cases;
whereas a ruling of this latter type also produces a narrowing of the operational perimeter of the favorable provision, with the consequence that the offense removed from the ground of non-punishment falls back within the (broader) area of penal relevance originally delineated by the legislature;
whereas this Court's intervention to protect constitutional principles, even within the limits imposed by safeguarding the principle of statutory reservation in criminal matters, cannot be impeded by contingent choices of legislative drafting techniques made by the legislature;
whereas, conversely, what matters is the outcome resulting from any declaration of constitutional illegitimacy by this Court, which is always permissible if the effect is to confirm the area of penal relevance traced by the legislature, based on the mechanism of re-expansion of the general rule determined—as stated by the aforementioned judgment No. 394 of 2006—by the principle of the unity of the legal system;
whereas, as regards the merits of the questions raised by the judge a quo, the same, which concern solely the third paragraph of Article 649 of the Criminal Code, prompt doubts, a fortiori, as to the compatibility with the Constitution of the sanctioning mechanism's structure for property offenses committed to the detriment of relatives as governed by the aforesaid article;
whereas, in fact, the definition, in the third paragraph, of the hypotheses excluding punishment pursuant to the first paragraph must necessarily be evaluated in light of the overall sanctioning regime and the relationship between the exclusion of punishment (first paragraph) and derogations from such exclusion (third paragraph);
whereas, therefore, based on the relationship of presupposition and containment between the issues deduced by the judge a quo concerning the third paragraph of Article 649 of the Criminal Code and those having as their object the entire provision, the definition of the latter is logically preliminary and instrumental to the definition of the issues raised by the judge a quo (ex multis, orders No. 94 of 2022 and No. 18 of 2021);
whereas "the manner in which incidental questions of constitutional legitimacy are occasionally raised cannot prevent the court of laws from fully examining the system in which the denounced norms are embedded" (orders No. 18 of 2021 and No. 183 of 1996; in the same sense, orders No. 230 of 1975 and No. 100 of 1970);
whereas the non-manifestly unfounded nature of the preliminary questions is found in the potential conflict with Articles 2, 3, and 29 of the Constitution of the current discipline designed by Article 649 of the Criminal Code, centered on the predominant protection of the family unit and civil union, even to the detriment of the position of its individual members;
whereas, as already highlighted by this Court, "a provision such as the challenged one—inspired by a criterion of rigid protection of the family institution and its cohesion, implemented at the expense of the individual rights of the members of the family unit and of the public interest itself in the repression of crimes (judgment No. 352 of 2000)—must be evaluated, on the point of reasonableness, 'in light of current social reality' (as this Court expressed itself with judgment No. 126 of 1968)" (judgment No. 223 of 2015), since the constitutional illegitimacy of a norm may also derive from its no longer persistent reasonableness in light of the altered regulatory framework and changed social context (thus, again, judgment No. 223 of 2015);
whereas, moreover, the foundation of any derogation from the principle of equality of citizens before the law must be measured, in terms of reasonableness (with reference to the congruence of its logical prerequisites and its concrete effects), in relation to the factual and legal conditions under which the derogation itself is called to operate; conditions which, by definition, are subject to constant evolution (again, judgment No. 223 of 2015);
whereas, therefore, the reasonableness of the derogating solution adopted by the legislature may also be called into question by reason of its anachronism, as this Court has repeatedly affirmed (for example, judgments No. 231 of 2013, No. 354 of 2002, No. 508 of 2000, and No. 41 of 1999);
whereas the reasonableness of the discipline under Article 649 of the Criminal Code is doubtful, considering, first of all, with the advent of the Constitution, a new conception of the family, which precludes the adoption of a discipline capable of permitting the prevarication of individual rights belonging to individual members (thus the repeatedly cited judgment No. 223 of 2015; but also judgment No. 494 of 2002, which emphasizes that the Constitution "does not justify a conception of the family that is hostile to persons and their rights");
whereas the overcoming of the conception of the family as an entity distinct from its individual members (and frequently superordinate to them), deserving autonomous protection even to the detriment of the latter, has, moreover, been the basis of fundamental legislative interventions, such as Law No. 898 of December 1, 1970 (Regulation of cases of dissolution of marriage), Law No. 151 of May 19, 1975 (Reform of family law), Law No. 219 of December 10, 2012 (Provisions concerning the recognition of natural children), and Legislative Decree No. 154 of December 28, 2013 (Revision of current provisions concerning filiation, pursuant to Article 2 of Law No. 219 of December 10, 2012);
whereas, furthermore, the unreasonableness of the framework delineated by the challenged provision would appear to emerge from the abandonment, also on the level of property relations, of the traditional full and exclusive community of interests, replaced, in greater coherence with the principle of moral and legal equality of spouses, by the reciprocal economic autonomy of the members of the family unit or civil union; a fact testified to, inter alia, by the much greater frequency of cases of multiple and independent acquisition of income and the correlated autonomy in the egalitarian contribution to the choices regarding the management of common needs;
whereas the evaluations set forth thus far lead to the conclusion that the discipline of Article 649 of the Criminal Code as a whole could likewise conflict with Articles 2 and 29 of the Constitution, which protect not only the family and civil union as social formations, but also the inviolable rights of their individual members;
whereas, precisely in light of such considerations, already with judgment No. 223 of 2015, and thus over a decade ago, this Court had addressed a firm admonition to the legislature to proceed with the "indispensable updating of the discipline of property offenses committed within the family sphere, achieving, while continuing to valorize the family institution and its relative constitutional safeguard norm (Article 29 of the Constitution), a new balance, in this sector, between the rights of individuals and the protection needs of the family unit";
whereas on that occasion it was observed that this Court's intervention is justified precisely in cases, such as the present one, in which "the untimely dragging on over time of disciplines matured in a given context transudes, in light of altered social reality, into a disproportionate and manifestly unreasonable regulation of the interests involved" (again judgment No. 223 of 2015);
whereas this Court, moreover, has already affirmed that the long time elapsed since the alert addressed to the legislature's attention requires bringing back to constitutional legitimacy a norm deemed unreasonable and injurious to the evoked constitutional parameters (judgment No. 10 of 2024 and order No. 18 of 2021);
whereas, on the other hand, even though differentiated normative solutions are conceivable, the examination of these specific instances of constitutional protection, pertaining to fundamental rights, cannot be omitted, since "the need to guarantee constitutional legality must, in any event, prevail over that of leaving room for the legislature's discretion for the complete regulation of the matter" (judgment No. 242 of 2019 and order No. 18 of 2021; in the same sense, judgments No. 96 of 2015, No. 162 of 2014, and No. 113 of 2011);
whereas, finally, the identified anachronism of the challenged discipline might not exclude a differentiated treatment of property offenses committed to the detriment of relatives even from a procedural perspective;
whereas, therefore, for the purposes of defining the present proceedings, this Court cannot exempt itself from preliminarily resolving the questions of constitutional legitimacy of Article 649 of the Criminal Code—which it finds to be non-manifestly unfounded—for conflict with Articles 2, 3, and 29 of the Constitution.
on these grounds
THE CONSTITUTIONAL COURT
1) raises, ordering the proceedings to be held before it, questions of constitutional legitimacy regarding Article 649 of the Criminal Code, with reference to Articles 2, 3, and 29 of the Constitution;
2) stays the present proceedings pending the determination of the aforementioned questions of constitutional legitimacy;
3) orders the Registry to carry out the statutory formalities.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 7, 2026.
Signed:
Giovanni AMOROSO, President
Filippo PATRONI GRIFFI, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on October 6, 2026
The anonymized version conforms in text to the original