JUDGMENT NO. 171

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, 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 the proceedings concerning the constitutionality of Article 276, paragraph 1-ter, of the Code of Criminal Procedure, brought by the Ordinary Court of Naples, Review Section, in the criminal proceedings against M.M.J. F., by order of November 26, 2025, registered under no. 16 of the 2026 register of orders and published in the Official Gazette of the Republic no. 7, 1st special series, for the year 2026, the hearing for which was scheduled for the chamber counsel of July 6, 2026.

Having seen the appearance of the President of the Council of Ministers;

having heard in the chamber counsel of July 7, 2026, Judge Rapporteur Massimo Luciani;

deliberated in the chamber counsel of July 7, 2026.

The Law in Fact 

1.– By order of November 26, 2025, registered under no. 16 of the 2026 register of orders, the Ordinary Court of Naples, Review Section, raised questions as to the constitutional legitimacy of Article 276, paragraph 1-ter, of the Code of Criminal Procedure, with reference to Articles 3, 13, and 27 of the Constitution, insofar as it provides that "in the event of tampering or one or more serious or repeated conducts preventing or obstructing the regular operation of electronic means and other technical control instruments referred to in Article 275-bis, even when applied pursuant to Articles 282-bis and 283-ter, the judge shall order the revocation of the measure and its replacement with pre-trial detention in prison, unless the act is of minor significance.”

Regarding the facts of the case, the referring judge states that he was called upon to rule on the appeal filed by M.M.J. F. against an order issued by the Ordinary Court of Avellino, which had ordered the aggravation of the precautionary measure prohibiting approaching the victims, previously imposed, together with the obligation of an electronic bracelet, by the same Court in relation to the offenses of stalking and aggravated personal injury.

The grounds for the aggravation were identified in certain violations by the suspect of the restrictions ordered by the judicial authority, consisting of: a) failure to maintain the device (failing to charge the electronic bracelet "properly”); b) failure to attend the appointment with the technicians in charge of monitoring the device’s operation, without documenting any impediments; c) repeated failure to observe the 500-meter distance from the victim.

Against this order, the suspect's defense appealed, representing: a) the minor nature of the violations; b) the short time frame between violations of the 500-meter distance, also justified by the small size of the municipality of residence; c) the difficulty that the suspect, who is unemployed and lacks means of transportation, had in reaching the technicians at the Police Headquarters; d) the suspect's consistently cooperative conduct.

1.1.– As to the relevance of the questions, the referring judge observes that "[w]hile the numerous violations of the supplementary restrictions to the measure prohibiting approaching the victim reveal a level of transgression by the suspect such as to exclude the minor nature of the violations, on the other hand they do not allow for the conclusion that, from the perspective of necessity, a precautionary measure less afflictive than pre-trial detention in prison (and in particular that of house arrest) would not be adequate for the purpose.”

Therefore, having excluded the minor nature of the violations, the judge a quo considers that the automatism contemplated by the censured provision compels him to aggravate the precautionary measure by ordering pre-trial detention in prison, even in cases which, as in the present one, do not require recourse to the most burdensome precautionary measure. It is precisely the automatism provided for by Article 276, paragraph 1-ter, of the Code of Criminal Procedure that renders the question relevant: indeed, any upholding of the question would result in conferring upon the judge the discretion to evaluate the extent, motives, and circumstances of the violations, thereby also permitting the adoption of more severe measures, such as house arrest, which are more suitable for achieving the underlying purpose of the custody while simultaneously ensuring the "minimal sacrifice resulting from the limitation of the right.”

1.2.– As to the non-manifest unfoundedness, the referring judge maintains that the censured provision conflicts with Articles 3, 13, and 27 of the Constitution.

He states that it derogates from Article 276, paragraph 1, of the Code of Criminal Procedure, which recognizes the general discretionary power of the judge to order the substitution of precautionary measures based on the intensity of the precautionary requirements, by contemplating cases of mandatory and automatic aggravation resulting from the violation of restrictions concerning the prohibition of leaving the place of house arrest, unless the act is of minor significance. Conversely, Article 12, letter b), of Law No. 168 of November 24, 2023 (Provisions for combating violence against women and domestic violence), by amending paragraph 1-ter of the same Article 276 of the Code of Criminal Procedure, extended the automatic application of pre-trial detention in prison to cases involving the tampering with electronic means and other technical control instruments, whereas "Article 7 of Law No. 178/2024” (correctly: Decree-Law No. 178 of November 29, 2024, bearing "Urgent measures in the matter of justice,” converted, with amendments, into Law No. 4 of January 23, 2025) further extended the automatism to cases of "one or more serious or repeated conducts that prevent or hinder the regular operation” of control means.

The referring judge adds that: "[t]he automatic aggravation of precautionary measures applied in the case of conduct involving the tampering with/evading the regular operation of the ‘bracelet’ is, therefore, considered by the legislature to be per se indicative of an accentuated increase in the *periculum libertatis* in relation to the ‘peculiar connotation of domestic violence crimes’.” Furthermore, he states that "[t]he automatism does not concern solely the *an* of the aggravation of the measure but also includes the type of measure to be applied, identifying pre-trial detention in prison as the sole safeguard capable of containing the precautionary danger inferred, presumptively, from the type of violations ascertained”; a margin of judicial discretion remains solely in evaluating the minor significance of the "evasive/tampering behaviors.”

Having premised this, the referring judge believes that the described automatism conflicts with the principles of proportionality and adequacy governing the matter of precautionary measures, in accordance with what has also been recognized in the jurisprudence of this Court (citing Judgment No. 24 of 2019) and of the ECtHR.

In this regard, the judge a quo, recalling constitutional jurisprudence which has frequently condemned "sanctioning automatisms” from the perspective of absolute presumptions of adequacy in personal precautionary matters (referencing Judgments No. 48 of 2015, No. 232, No. 213, and No. 57 of 2013, No. 231, and No. 164 of 2011), emphasizes the difference between the question raised and those resolved by previous declarations of constitutional illegitimacy. The latter, in fact, concerned "coercive measures ordered at the genetic stage” and had as their object the "absence of an evaluative space concerning the possible satisfaction of precautionary requirements through measures other than pre-trial detention in prison, based on specific elements acquired in the concrete case.” Conversely, the automatism now censured does not concern the application of coercive measures ordered at the genetic stage, but rather concerns the reaction to conduct transgressing precautionary restrictions.

In particular, the transgressions underlying the automatism concern the supplementary restriction of employing electronic control means, providing that any tampering, circumvention, or obstruction of their operation requires the replacement of the applied measure with that of pre-trial detention in prison.

While fully aware of the sensitivity of the values at stake and the purposes pursued by the legislature—which, with Law No. 168 of 2023 (the so-called "New Red Code”), made electronic monitoring mandatory to safeguard the prohibition of approaching—the judge a quo doubts whether the current automatism complies with the principles of proportionality, adequacy, and necessity of precautionary measures: in some cases, in fact, the intensity of the evasive/obstructive conduct is not such as to justify recourse to pre-trial detention in prison as the sole precautionary instrument, as there is no danger such as to exclusively require the most burdensome measure.

The censured provision thus appears to the referring judge to be incompatible with the principles of adequacy and proportionality (Article 3 of the Constitution), culpability (Article 27 of the Constitution), and the protection of personal liberty (Article 13 of the Constitution), given that constitutional jurisprudence has reiterated that "precautionary coercion, in compliance with the principle of reasonableness under Article 3 of the Constitution and *favor libertatis* under Article 13 of the Constitution, must respond to the criteria of minimal necessary sacrifice and individualization, and neither automatisms nor absolute presumptions are tolerable (cf. Judgment No. 232 of 2013 and Judgment No. 22 of 2022).”

While the revocation of house arrest and its replacement with custodial intramural measures appears justified in the event of transgressions concerning not only the prohibition of leaving the home or private domicile, but also cases of tampering with electronic instruments and other technical tools used for monitoring, "the same cannot be said,” argues the referring judge, "when such monitoring procedures have been applied pursuant to Articles 282-bis and 282-ter of the Code of Criminal Procedure, and thus with a reinforcing value for the measures of removal from the family home and prohibition of approaching the victim.” This is based on the premise that "the act of tampering aimed at evading control procedures […], while indicative of an intensification of the *periculum libertatis*, is not for that very reason symptomatic of the inescapable necessity of adopting the highest degree of personal liberty-depriving measure, since concrete cases may reveal the sufficiency and suitability of less afflictive measures, such as house arrest.”

Such an assessment would nonetheless be unreasonably precluded to the judge, who finds himself applying a "sanctioning automatism” without being able to proceed with any evaluation of the precautionary requirements "in terms of choosing the type of precautionary measures to be applied, even jointly, in the event of aggravation.”

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 aforementioned question of constitutional legitimacy be declared inadmissible or, in the alternative, unfounded.

In the intervener's view, the question lacks relevance since the provision that the referring judge ought to apply is not Article 276, paragraph 1-ter, of the Code of Criminal Procedure: the description of the facts provided by the referral order does not reveal any tampering activity with the electronic bracelet nor any serious or repeated conduct obstructing or impeding its operation. Indeed, the tampering with the electronic device is not even hinted at by the referring judge, who exclusively reports a "failure to maintain the device (e.g., failing to charge it properly).” As for the alternative hypothesis of serious and repeated violations, the referring Court itself excludes the requirements of gravity and repetition.

Consequently, the referring judge ought to apply the general criterion for assessing the aggravation of precautionary measures established by paragraph 1 of Article 276 of the Code of Criminal Procedure.

A second profile of inadmissibility concerns the concluding clause of the provision "unless the act is of minor significance,” which would grant the judge the power to utilize such a broad and articulated spectrum of evaluations that the measure prohibiting approaching the victim could be tailored in the deemed most appropriate manner, including the application of house arrest.

The referring judge failed to attempt a constitutionally oriented interpretation of the censured provision—an interpretation that, conversely, would have allowed for the appreciation of the "minor significance” of the facts imputed to the suspect and thus the possibility of graduating the substitute precautionary measure, due to the absence of fraudulent conduct (tampering) or the requirement of gravity or repetition of the violations, thereby avoiding the contested automatism.

In the alternative, the questions would be unfounded.

The censured provision is considered an expression of the regulatory framework desired by the legislature—prompted also by condemnatory rulings of the ECtHR—to combat violence against women and domestic violence. Citing this Court's recent Judgment No. 173 of 2024, the State Attorney's Office emphasizes the legitimacy of balancing the protection of the physical and psychological safety of victims with the personal liberty of the suspect. The purpose pursued by the censured provision is indeed twofold: to strengthen the effectiveness of precautionary measures by preventing recidivism; and to guarantee immediate protection for victims.

On the other hand, the presence of the clause "unless the act is of minor significance” allows the judge to retain an appreciable margin of discretion, immune from preclusions or automatisms.

The Law in Substance

3.– By the aforementioned order, registered under no. 16 of the Register of Orders for 2026, the Court of Naples, Review Section, called upon to rule on the appeal filed by M.M.J. F. against the order aggravating the precautionary measure prohibiting approaching victims with an electronic bracelet issued by the Court of Avellino in relation to the offenses of stalking and aggravated personal injury, raised questions concerning the constitutional legitimacy of Article 276, paragraph 1-ter, of the Code of Criminal Procedure, with reference to Articles 3, 13, and 27 of the Constitution, insofar as it establishes that "in the event of tampering or one or more serious or repeated conducts preventing or obstructing the regular operation of electronic means and other technical control instruments referred to in Article 275-bis, even when applied pursuant to Articles 282-bis and 283-ter, the judge shall order the revocation of the measure and its replacement with pre-trial detention in prison, unless the act is of minor significance.”

3.1.– As regards the facts of the case, the referring judge reports that the grounds for the aggravation were identified in multiple violations of the restrictions imposed on the suspect by the judicial authority.

3.2.– As regards the relevance of the questions, the referring judge observes that "[w]hile the numerous violations of the supplementary restrictions to the measure prohibiting approaching the victim reveal a level of transgression by the suspect such as to exclude the minor nature of the violations, on the other hand they do not allow for the conclusion that, from the perspective of necessity, a precautionary measure less afflictive than pre-trial detention in prison (and in particular that of house arrest) would not be adequate for the purpose.”

Having excluded the minor nature of the violations, therefore, he considers that the automatism contemplated by the censured provision compels him to aggravate the precautionary measure by ordering pre-trial detention in prison, even in cases where, as in the present one, there would be no necessity to resort to the most burdensome precautionary measure. For these reasons, considering himself compelled to apply the automatism provided for by Article 276, paragraph 1-ter, of the Code of Criminal Procedure, he qualifies the question as relevant: an eventual upholding of it would, in fact, allow him to evade it.

3.3.– As regards the non-manifest unfoundedness, the referring judge maintains that the provision of Article 276, paragraph 1-ter, of the Code of Criminal Procedure conflicts with Articles 3, 13, and 27 of the Constitution.

Such provision—he asserts—derogates from Article 276, paragraph 1, of the Code of Criminal Procedure, which recognizes the general discretionary power of the judge to order the substitution of precautionary measures based on the intensity of the precautionary requirements, by contemplating cases of mandatory and automatic aggravation resulting from the violation of imposed restrictions, unless the act is of minor significance. The censured provision, conversely, provides for an automatism that conflicts with the principles of proportionality and adequacy governing the matter of precautionary measures, in accordance with what has also been recognized in the jurisprudence of this Court (citing Judgment No. 24 of 2019) and of the ECtHR.

4.– The President of the Council of Ministers intervened in the proceedings, requesting that the aforementioned question of constitutional legitimacy be declared inadmissible or, in the alternative, unfounded.

Regarding inadmissibility, in particular, the intervener objects that: a) the question lacks relevance since the referring judge would not be called upon to apply Article 276, paragraph 1-ter, of the Code of Criminal Procedure, but rather paragraph 1 of the same article; b) the concluding clause "unless the act is of minor significance” would grant the judge the power to utilize such a broad and articulated spectrum of evaluations that the measure prohibiting approaching the victim could be tailored in the deemed most appropriate manner, including the application of house arrest.

5.– The objections of inadmissibility formulated by the State Attorney General's Office are well-founded.

5.1.– First of all, the referral order describes in an extremely succinct manner the episodes of transgression of the restrictions imposed on the suspect, which, not being qualifiable as of minor significance, would mandate an aggravation of the precautionary measure.

The reported conducts consist of: a) failure to maintain the device (i.e., failing to charge it "properly”); b) failure to attend the appointment with the technicians in charge of monitoring the device’s operation, without documenting any impediments; c) repeated failure to observe the 500-meter distance from the victim. The reasoning of the initiating act fails to illustrate the reasons why these conducts would be of such consistency and relevance that they could not be qualified as of "minor significance.” The mere description of the conducts and the absence of a concrete argumentative comparison with the principles affirmed in this regard by legitimacy jurisprudence—"minor significance” occurs in the case of low-level violations and significance or violations that are unable to disprove the previous assessment of the measure's suitability to satisfy the precautionary requirements of the concrete case (ex multis, Court of Cassation, Sixth Criminal Section, Judgment No. 5930 of January 12–February 13, 2023; Fourth Criminal Section, Judgment No. 13348 of February 9–March 22, 2018)—do not allow this Court to appreciate the plausibility of the logical path followed by the referring judge regarding the assessment of the actual consistency of the transgressions and their impact on the *periculum*.

In particular, the referring judge does not explain: whether the conduct of failing to charge the electronic device was single or repeated; whether all the contested conducts resulted in an obstruction or impediment to its operation; why they are not qualifiable as "general” transgressions, relevant—if at all—pursuant to paragraph 1 of the same Article 276 of the Code of Criminal Procedure.

This results in a failure to demonstrate the relevance of the question and concretely prevents its verification by this Court, which, although it must be conducted *ab externo*, must nevertheless be possible.

Even recently, this Court confirmed that deficient reasoning regarding the evaluation of allegations and evidence gathered in the main trial constitutes grounds for the inadmissibility of the question: "Constitutional jurisprudence is firm in affirming that: 1) the incidental question of constitutional legitimacy is admissible when the referral order is argued in such a way as to allow external control of relevance through non-implausible reasoning of the logical path taken and the reasons why the referring judge asserts the need to apply the censured provision in the main proceedings (ex plurimis, Judgments No. 179 of 2024, No. 94 of 2023, No. 237 of 2022, and No. 259 of 2021); 2) it is not up to this Court to ‘differently frame the evidentiary data’ acquired in the *a quo* proceedings and evaluated by the referrer to consider proven the factual prerequisites determining the applicability of the provision suspected of constitutional illegitimacy (Judgment No. 122 of 2024). [...] Having stated this, it must therefore be considered that the referring judge has provided deficient reasoning regarding the evaluation of the allegations and evidence gathered in the main trial, thus preventing even that external control of the reasons why he asserts the need to apply the censured provision in the main proceedings. This Court [...] cannot substitute itself for the judge *a quo* in evaluating the evidentiary material and the allegations made by the parties, but it can and must verify that he raises the question only after having scrutinized—with all the instruments abstractly at his disposal—the allegations and evidence offered to him, in order to avert the risk that, due to a deficient ascertainment of the facts, the question of constitutional legitimacy is of a purely hypothetical and contingent character” (Judgment No. 55 of 2026).

5.2.– Secondly, the referring judge—in effect—does not dwell upon the interpretation of the clause "unless the act is of minor significance,” its scope, and the possible effects of its application in the main proceedings.

The primary object of the censures is the automatism provided for by paragraph 1-ter of Article 276 of the Code of Criminal Procedure, which would prevent the judge from modulating the afflictive response (which the referring judge defines as "sanctioning”), proportioning it to the variable extent of the transgressions committed during the enforcement of precautionary measures. However, it is precisely the aforementioned clause that makes it doubtful whether one can continue to speak of automatism, and on this point the referring judge should have elaborated when constructing the argumentative framework of the initiating act.

It must first be reiterated that—as this Court already observed in Order No. 40 of 2002—the censured provision is "far from fulfilling sanctioning purposes extraneous to preventive custody measures, which can satisfy nothing other than requirements of a precautionary character or in any case strictly inherent to the trial (Judgments No. 1 of 1980 and No. 64 of 1970).” If, however, the aforementioned order noted that at the time it integrated "a case of presumption of inadequacy of any coercive measure other than pre-trial detention in prison,” today, the introduction by Article 5 of Law No. 47 of April 16, 2015 (Amendments to the Code of Criminal Procedure regarding personal precautionary measures. Amendments to Law No. 354 of July 26, 1975, regarding visits to persons severely affected by disabilities) of the clause "unless the act is of minor significance” has allowed for the moderation of the automatic mechanism for applying pre-trial detention in prison and has reintroduced the power-duty of the judge to proceed with a concrete assessment of the extent of the facts. The referral order, therefore, postulates the existence of a "sanctioning automatism” without explaining why it survives the aforementioned legislative amendment.

Punctual reasoning on this profile would instead have been particularly necessary, also considering that already in the aforementioned Order No. 40 of 2002, when the previous text was in force, this Court—while deeming legitimate the presumption of inadequacy of house arrest resulting from the transgression of restrictions—affirmed that the provision did not "exclude that the fact capable of justifying the substitution of the measure, typified by the legislature in the aforementioned normative formula, may be appreciated by the judge in all its structural and teleological connotations, to verify whether the transgression conduct concretely implemented presents those characters of effective harmfulness in light of which to consider the ‘violation’ integrated, which the provision [then censured] assumes as a prerequisite for substitution.” Even if in the different (and "weaker”) guise of ascertaining the "effective” qualificartion of the act as a "transgression,” therefore, an evaluative space for the judge was recognized even then.

It is with the enhancement of the judge's concrete appreciation, therefore, that the referring judge should have engaged, evaluating the extent of the transgression in light of: the modalities of the conduct; the degree of culpability inferable from it; the extent of the damage or danger resulting from it.

Instead, the referring judge limits himself to asserting that the transgressions committed by the suspect "do not reveal [...] a precautionary danger of such intensity as to require, in order to address said requirements, exclusively pre-trial detention in prison,” without concretely illustrating why the case at issue in the *a quo* proceedings does not fall within the perimeter of the clause "unless the act is of minor significance.” A thorough illustration was instead indispensable, since said clause, in the case of minor violations or violations otherwise incapable of disproving the prior assessment of precautionary adequacy, makes it possible not to resort to the "derogatory regime” provided for by paragraph 1-ter of Article 276 of the Code of Criminal Procedure, applying instead the ordinary regime referred to in paragraph 1 of the same article, without necessarily resorting to pre-trial detention in prison.

on these grounds

THE CONSTITUTIONAL COURT

declares the questions concerning the constitutional legitimacy of Article 276, paragraph 1-ter, of the Code of Criminal Procedure, raised with reference to Articles 3, 13, and 27 of the Constitution by the Ordinary Court of Naples, Review Section, by the order indicated in the heading, to be inadmissible.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 7, 2026.

Signed:

Giovanni AMOROSO, President

Massimo LUCIANI, Rapporteur

Roberto MILANA, Director of the Chancery

Filed in the Chancery on October 15, 2026

 

The anonymized version conforms in text to the original