ORDER NO. 177
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
ORDER
in proceedings concerning the constitutionality of Article 4-bis, paragraph 1-quater, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), as referred to in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, brought by the Court of Appeal of Turin, Second Criminal Section, in the criminal proceedings against M. B., by order of 18 May 2026, registered under no. 100 of the order register of 2026 and published in the Official Journal of the Republic No. 25, 1st special series, of the year 2026.
Having regard to the appearance submitted by the President of the Council of Ministers;
having heard in chambers on 5 October 2026 the Judge Rapporteur Filippo Patroni Griffi;
having deliberated in chambers on 5 October 2026.
Whereas the Court of Appeal of Turin, Second Criminal Section, by order of 18 May 2026, registered under no. 100 of the order register of 2026, raised questions as to the constitutional legitimacy, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, of Article 4-bis, paragraph 1-quater, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), as referred to in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, insofar as it does not provide that the enforcement order of the sentence must be suspended in the event of a conviction to a term of imprisonment not exceeding four years for the offence referred to in Article 600-ter of the Criminal Code (child pornography), where the special effect mitigating circumstance of lesser gravity referred to in Judgment No. 91 of 2024 of this Court has been recognized;
whereas the referring judge reports being called upon to rule in enforcement proceedings pursuant to Article 670 of the Code of Criminal Procedure against the measure whereby the Prosecutor General rejected the request for suspension of the imprisonment order issued against M. B., following a final conviction to two years and two months of imprisonment;
whereas the sentence was imposed because M. B. committed, in concurrence with another person pursuant to Article 110 of the Criminal Code, the offence referred to in Article 609-bis of the Criminal Code (sexual violence), aggravated by having been committed against a person of whom he is a parent (Article 609-ter, first paragraph, number 1, of the Criminal Code) and under ten years of age (Article 609-ter, second paragraph, of the Criminal Code); as well as the offence referred to in Article 600-ter of the Criminal Code (child pornography), aggravated by having been committed against a minor under sixteen years of age (Article 602-ter, fifth paragraph, of the Criminal Code);
whereas, the referring judge further reports, the sentencing treatment inflicted upon the convicted person was determined as follows: the base sentence for the most serious offence referred to in Article 600-ter, aggravated pursuant to Article 602-ter, fifth paragraph, of the Criminal Code, was set at nine years of imprisonment and a fine of 36,000 euros; pursuant to the special effect mitigating circumstance introduced by virtue of Judgment No. 91 of 2024 of this Court, such sentence was reduced to three years of imprisonment and a fine of 12,000 euros, and subsequently further reduced to two years of imprisonment and a fine of 8,000 euros in view of the recognition of generic mitigating circumstances; finally, it was increased, for the continuing offence (reato continuato) with the offence referred to in Article 609-bis of the Criminal Code, recognized as of lesser gravity pursuant to the final paragraph of the same Article 609-bis, to two years and two months of imprisonment and a fine of 8,700 euros;
whereas the referring Court of Appeal also reports that counsel for the convicted person, in challenging the rejection of the request for suspension of the imprisonment order, observed that the recognition of the special mitigating circumstance of lesser gravity would place his client «in a situation substantially analogous, at the enforcement stage», to that provided for by Article 609-bis of the Criminal Code, which, in the event that an analogous mitigating circumstance is recognized, is not included among the so-called obstructive offences pursuant to Article 4-bis, paragraph 1-quater, second period, of the Penitentiary Rules;
whereas counsel consequently requested an analogical interpretation in bonam partem of Article 4-bis, paragraph 1-quater, of the Penitentiary Rules; in the alternative, counsel raised an objection of constitutional illegality regarding the prohibition on suspending the enforcement of the sentence in relation to the offence referred to in Article 600-ter of the Criminal Code, where the special effect mitigating circumstance of lesser gravity is recognized;
whereas the referring judge deems such analogical interpretation precluded, «as the judge may not extend by interpretation the scope of rules that introduce derogations from a general rule»;
whereas, however, the judge considers relevant and not manifestly unfounded the questions concerning the constitutional legitimacy of Article 4-bis, paragraph 1-quater, of Law No. 354 of 1975, referred to in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, within the aforementioned terms;
whereas the questions would be relevant inasmuch as M. B., despite having been sentenced to a penalty of less than four years of imprisonment for the offence referred to in Article 600-ter of the Criminal Code, recognized as of lesser gravity, is currently detained, given that Article 4-bis, paragraph 1-quater, of the Penitentiary Rules does not permit the suspension of enforcement;
whereas the non-manifest unfoundedness of the questions may be inferred from constitutional case law and, in particular, from Judgment No. 68 of 2026, which ruled on the suspension of sentence enforcement for the crime referred to in Article 609-quater of the Criminal Code (sexual acts with a minor) to which the special effect mitigating circumstance referred to in the sixth paragraph of the same Article 609-quater of the Criminal Code has been recognized;
whereas this Court, indeed, the referring judge continues, has repeatedly affirmed in this regard that «the "optimal solution" would require a link between the suspension of the enforcement order and the possibility of access to alternative measures to detention»;
whereas the legislature may provide for exceptions to this rule, provided however that such identification is «linked to the particular dangerousness indicated by certain offences, such that the imposition of a period of imprisonment prior to accessing alternative measures to detention must be a residual eventuality, reserved precisely for this type of offence, expressing an objectively recognized disvalue»;
whereas pursuant to these principles Judgment No. 68 of 2026 was rendered, which declared constitutionally illegitimate Article 4-bis, paragraph 1-quater, of the Penitentiary Rules, insofar as it applies to persons convicted of the crime referred to in Article 609-quater of the Criminal Code, to whom the special effect mitigating circumstance of lesser gravity referred to in the sixth paragraph of the same Article 609-quater of the Criminal Code has been recognized;
whereas the Court of Appeal of Turin, extensively citing excerpts from that decision, considers unreasonable and contrary to the re-educative function of the penalty the inclusion among the so-called obstructive offences of that referred to in Article 600-ter of the Criminal Code, even if aggravated pursuant to Article 602-ter of the Criminal Code, when the special effect mitigating circumstance of lesser gravity, introduced by virtue of Judgment No. 91 of 2024 of this Court, has been recognized;
whereas, in the present case, the irrevocable judgment recognized the existence of the aforementioned mitigating circumstance inasmuch as M. B. is not found to be embedded in circles dedicated to the dissemination of child pornography material, so that the conduct for which he was convicted would be extraneous to those profiles of particular social alarm that prompted the legislature to establish, for the offence under Article 600-ter of the Criminal Code, «a statutory minimum of considerable harshness and, more generally, to penalize any conduct whatsoever capable of feeding the supply of child pornography destined for the relevant market, a market which is at the root of the sexual exploitation of minors»;
whereas, in light of this assessment, the prohibition on suspending the enforcement of the penalty would conflict with Articles 3 and 27, first and third paragraphs, of the Constitution;
whereas it would be unreasonable, first of all, that, despite the recognized limited dangerousness of the convicted person, access to an alternative measure to detention is not possible without a prior stint in prison;
whereas, indeed, once the mitigating circumstance of lesser gravity has been recognized – which is based «on the acknowledgment of the breadth of the regulatory wording of Article 600-ter of the Criminal Code and the related suitability to include, within its scope of application, conduct markedly dissimilar at the criminological level and in terms of the rate of disvalue» – it would be unreasonable and contrary to the re-educative function of the penalty to presume that the convicted person is dangerous to such an extent as to necessarily initiate the expiation of the penalty in prison, rendering him unable even to access alternative measures to detention for one year, «with a restrictive scope upon personal liberty that is particularly and unreasonably afflictive (Judgment No. 32 of 2020)»;
whereas, furthermore, the censured norm, also in view of the timeframes necessary for the decision of the surveillance court, could entail that the detainee does not have the concrete possibility of accessing alternative measures to detention for the entire duration of the sentence, with the consequence, deleterious to the re-education process, that the enforcement modalities of the penalty are perceived as disproportionate with respect to a fact that has been recognized as of lesser gravity;
whereas the conflict with Article 3 of the Constitution would also be appreciated from another perspective;
whereas, indeed, in Judgment No. 91 of 2024 this Court, in order to identify the measure of the mitigating circumstance to be applied, as a constitutionally adequate solution, to the lesser gravity criminal hypotheses referred to in Article 600-ter of the Criminal Code, made reference to that provided for by Article 609-quater of the Criminal Code, by reason of the «significant traits in common» between the two legal categories, both aiming at the protection of the «free and harmonious development of the minor's personality in the sexual sphere»;
whereas, in consideration of what was subsequently decided by this Court in Judgment No. 68 of 2026, the assimilation between the two legal categories «cannot fail to reverberate also upon the enforcement modalities of the penalty provided for in cases where, proceedings being held for the crime under Article 600-ter of the Criminal Code, the mitigating circumstance of lesser gravity is recognized to the defendant»;
whereas, by act filed on 14 July 2026, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, which requested that the questions of constitutional legitimacy be declared unfounded;
whereas the defense of the intervener contends that the referring judge has in truth challenged discretionary choices of the legislature in matters of criminal policy and criminal law;
whereas, indeed, the institution of the suspension of the enforcement order, however much it is aimed at «giving body and substance» to the re-educative function of the penalty, is not constitutionally mandated and, even less, is «any specific modality in which it must be declined» constitutionally mandated;
whereas, within this framework, the choice to react «with greater rigor and harshness when dealing with particularly heinous and socially alarming crimes such as child pornography» is an expression of legislative discretion;
whereas the censured choice is not, in any event, a «manifestly irrational» choice, nor could the conflict with Article 3 of the Constitution be derived from a «supposed dystonia» with the treatment reserved for analogous situations; in this regard, the reference to Judgment No. 68 of 2026 of this Court would not hold, given the «overriding reason» that the offences are different;
whereas, in particular, the State Attorney General's Office notes that «the legal offensiveness of the crime of child pornography is particularly structured, not only because the aggression concerns various legal interests (the sexual freedom of the minor-victim, but also their individual personality, psycho-physical well-being, and dignity), but also because the pornographic image of the minor, once produced, is susceptible to potentially unlimited, uncontrollable, and repeated dissemination over time [...], with the consequence that the circulation of such material causes permanent victimization of the minor since each further viewing or sharing represents a further offense against the aforementioned legal interests» (citing Court of Cassation, Joint Criminal Sections, Judgment No. 51815 of 31 May-15 November 2018);
whereas these characteristics would render the offence under Article 600-ter of the Criminal Code «peculiar among sexual crimes» and would exclude the constitutional illegitimacy feared by the referring judge;
whereas, while it is true that the special effect mitigating circumstance responds to the need to assess in concrete terms the intensity of the offense, nevertheless all the peculiarities of the crime under examination remain;
whereas, not by chance, the case law of this Court has specified that the principle of parallelism between the possibility of access to alternative measures to detention and the suspension of the enforcement of penalties is derogable in the face of the particular gravity of the offences (citing Judgments No. 238 of 2021 and No. 216 of 2019);
whereas the President of the Council of Ministers further notes how the comparison with the offences under Articles 609-bis and 609-quater of the Criminal Code misses the mark also from another perspective;
whereas, indeed, a correct interpretation of Article 4-bis, paragraph 1-quater, of the Penitentiary Rules should lead to the conclusion that, when the aggravating circumstances referred to in Article 609-ter of the Criminal Code occur – expressly indicated in the same Article 4-bis and also referred to by Article 609-quater, final paragraph, of the Criminal Code, for cases where the victim has not reached the age of ten – access to alternative measures to detention is not possible prior to one year of intramural observation, not even where the special mitigating circumstance of lesser gravity has been recognized;
whereas, therefore, the legislature has deemed that particular tender age is an element that increasingly renders the offence more offensive, thereby requiring the «particular observation and treatment modalities» referred to in Article 4-bis, paragraph 1-quater, of the Penitentiary Rules (citing Court of Cassation, First Criminal Section, No. 39985 of 9 April-30 September 2019);
whereas the defense of the intervener, furthermore, contests that the fact that, in the present case, it was ruled out that the convicted person is embedded in circles dedicated to the dissemination of child pornography material can serve as an argument in favor of the merits of the raised questions;
whereas, indeed, apart from the fact that constitutional legitimacy review focuses on norms in relation to other norms, and therefore cannot consider «the factual-procedural peculiarities of the a quo proceedings», the offence referred to in Article 600-ter of the Criminal Code is aimed at countering the danger of the dissemination of said material, independently of conduct in that direction by the offender.
Considering that, by the order indicated in the heading, the Court of Appeal of Turin, Second Criminal Section, has raised questions as to the constitutional legitimacy, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, of Article 4-bis, paragraph 1-quater, of Law No. 354 of 1975, referred to in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, insofar as it does not provide that the enforcement order of the sentence must be suspended in the event of a conviction to a term of imprisonment not exceeding four years for the offence referred to in Article 600-ter of the Criminal Code (child pornography), where the special effect mitigating circumstance of lesser gravity referred to in Judgment No. 91 of 2024 of this Court has been recognized;
whereas the referring judge reports being called upon to rule in enforcement proceedings pursuant to Article 670 of the Code of Criminal Procedure against the measure whereby the Prosecutor General rejected the request for suspension of the imprisonment order issued against M. B., who was definitively sentenced to two years and two months of imprisonment for having committed, in concurrence with another person pursuant to Article 110 of the Criminal Code, the offence referred to in Article 609-bis of the Criminal Code (sexual violence), aggravated by having been committed against a person of whom he is a parent (Article 609-ter, first paragraph, number 1, of the Criminal Code) and under ten years of age (Article 609-ter, second paragraph, of the Criminal Code); as well as the offence referred to in Article 600-ter of the Criminal Code (child pornography), aggravated by having been committed against a minor under sixteen years of age (Article 602-ter, fifth paragraph, of the Criminal Code);
whereas the questions are manifestly inadmissible, due to deficient reasoning concerning relevance;
whereas the referring judge, in fact, asserts that the auspicated declaration of constitutional illegitimacy would allow him to suspend the enforcement of the penalty imposed for the offence under Article 600-ter of the Criminal Code, as requested by the defense of the convicted person, so as to allow the latter to apply for access to alternative measures, pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure;
whereas, however, in the present case the penalty of imprisonment was imposed, as the referring judge himself reports, not only for the offence referred to in Article 600-ter of the Criminal Code, aggravated pursuant to Article 602-ter, fifth paragraph, of the Criminal Code, but also for that referred to in Article 609-bis of the Criminal Code, aggravated pursuant to Article 609-ter, first paragraph, number 1), and second paragraph, of the Criminal Code;
whereas the provisions of Article 4-bis, paragraph 1-quater, of the Penitentiary Rules, by express regulatory provision, apply not only to persons convicted of the offence referred to in Article 600-ter of the Criminal Code, but also to persons convicted to whom the aggravating circumstances referred to in Article 609-ter of the Criminal Code have been recognized;
whereas, according to the case law of legitimacy, the provisions of Article 4-bis, paragraph 1-quater, of the Penitentiary Rules apply to persons convicted of the offence of aggravated sexual violence pursuant to Article 609-ter of the Criminal Code even when the special effect mitigating circumstance of lesser gravity referred to in Article 609-bis, final paragraph, of the Criminal Code has been recognized to them (Court of Cassation, First Criminal Section, Judgments No. 33638 of 30 June-16 September 2026; No. 39985 of 2019; No. 42309 of 11-30 November 2010; No. 30497 of 3 June-30 July 2010; No. 20896 of 13 May-3 June 2010);
whereas, therefore, even if the raised questions of constitutional legitimacy were to be upheld, the sentence imposed, in the present case, for the offence referred to in Article 609-bis of the Criminal Code, aggravated pursuant to Article 609-ter, first paragraph, number 1), and second paragraph, of the Criminal Code, appears to constitute an obstacle to the suspension of sentence enforcement;
whereas, in the face of this regulatory and case-law framework, which is not accounted for in the referring order, the referring judge fails to illustrate the reasons why he considers that the conviction for the offence referred to in Article 609-bis of the Criminal Code, aggravated pursuant to Article 609-ter of the Criminal Code, does not constitute an obstacle to the suspension of sentence enforcement;
whereas, therefore, the raised questions of constitutional legitimacy must be declared manifestly inadmissible.
for these reasons
THE CONSTITUTIONAL COURT
declares the manifest inadmissibility of the questions concerning the constitutional legitimacy of Article 4-bis, paragraph 1-quater, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty), referred to in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure, raised, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, by the Court of Appeal of Turin, Second Criminal Section, by the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 October 2026.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Author
Roberto MILANA, Director of the Registry
Filed in the Registry on 22 October 2026
The anonymized version conforms in text to the original