JUDGMENT NO. 180
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 constitutionality of Articles 168-bis, first paragraph, 346-bis, and 353-bis of the Criminal Code and of Article 550, second paragraph, of the Code of Criminal Procedure, brought by the Judge of the Preliminary Hearing at the Ordinary Court of Pescara, in the criminal proceedings against G. D., by order of 27 November 2025, registered as no. 43 of the order register of 2026 and published in the Official Gazette of the Republic no. 12, 1st special series, for the year 2026.
Having regard to the appearance entered by G. D. as well as the intervention brief of the President of the Council of Ministers;
having heard Judge Rapporteur Maria Alessandra Sandulli at the public hearing of 23 September 2026;
having heard attorneys Marco Spagnuolo and Mirco D’Alicandro for G. D., as well as State Attorney Antonio Trimboli for the President of the Council of Ministers;
having deliberated in chambers on 23 September 2026.
The Law in Fact
1.– By order of 27 November 2025 (reg. ord. no. 43 of 2026), the Judge of the Preliminary Hearing at the Ordinary Court of Pescara raised, with reference to Articles 3, 27, third paragraph, and 76 of the Constitution, questions as to the constitutional legitimacy of the combined provisions of Articles 168-bis, first paragraph, 346-bis, and 353-bis of the Criminal Code and Article 550, second paragraph, of the Code of Criminal Procedure, insofar as they exclude the offences of trafficking in illicit influences and disruption of the freedom of the contractor selection procedure from the scope of application of the suspension of proceedings with probation (messa alla prova).
2.– As to the facts, the referring judge states that he is called upon to rule on the application by which the defendant G. D., charged with the two aforementioned offences, requested admission to the suspension of proceedings with probation. The order specifies that a treatment program drawn up by the external criminal enforcement office was attached to the request and that the public prosecutor expressed a favorable opinion regarding its acceptance.
3.– Concerning relevance (rilevanza), the a quo judge points out that the conditions set forth in Article 464-quater of the Code of Criminal Procedure for granting the aforementioned request are met, in view of the favorable prognosis regarding the defendant's future abstaining from committing further offenses and the absence of «evidence requiring an immediate judgment» of acquittal pursuant to Article 129 of the Code of Criminal Procedure. Access to this legal institution is, however, precluded by Article 168-bis, first paragraph, of the Criminal Code, which restricts its application to proceedings for «offenses punished with a statutory penalty not exceeding a maximum of four years, alongside contraventions, as well as [for] offenses taxatively indicated» by Article 550, second paragraph, of the Code of Criminal Procedure, namely among those for which direct citation for trial is provided. Conversely, the offenses charged against the defendant are punished, respectively, with imprisonment of up to five years and up to four years and six months, and do not fall within the category of offenses prosecuted by direct citation for trial.
4.– The referring judge also rules out the feasibility of a constitutionally oriented interpretation, since «[t]he four-year threshold is established in literal terms and does not allow for extensions by analogy ‘in bonam partem’ for special procedure purposes», whereas the reference to Article 550, second paragraph, of the Code of Criminal Procedure is taxative in nature and does not allow Articles 353-bis and 346-bis of the Criminal Code to be assimilated to the categories listed therein.
5.– Regarding non-manifest unfoundedness, the referring judge maintains, first, that the censured legislation, in violation of Article 3 of the Constitution, produces a «selective effect, devoid of clear coherence with the reward-based and rehabilitative rationale» of the probation institution, by allowing access to it for offenses backed by higher statutory penalty ranges than those provided for the offenses forming the subject matter of the a quo proceedings. Such differential treatment would not respond to requirements of procedural simplification, since Article 550, second paragraph, of the Code of Criminal Procedure «lists heterogeneous offenses from an objective and subjective standpoint», selected on the basis of «the modalities of initiating the trial rather than their aptitude for resocialization». The a quo judge further observes that, by virtue of the reference to the aforementioned procedural provision, probation is permitted for the offense of receiving stolen goods (ricettazione), punished with imprisonment from two to eight years and protecting legal interests of an importance «at least equal» to those protected by the offenses forming the subject matter of the proceedings, as well as for certain offenses against public administration, such as violence or threat and resistance to a public official (Articles 336 and 337 of the Criminal Code), both punished with imprisonment of up to five years, and contempt of a public official (Article 341-bis of the Criminal Code), characterized by a «significant statutory penalty range». Conversely, the offenses of trafficking in illicit influences and disruption of the freedom of the contractor selection procedure would be unjustly excluded, notwithstanding that they are analogously located within the area of offenses against public administration and possess, «by their very nature, a marked aptitude for restorative pathways».
6.– To corroborate the alleged unreasonableness, the a quo judge cites judgment no. 90 of 2025, whereby this Court declared the constitutional illegitimacy of Article 168-bis of the Criminal Code to the extent that it excluded from probation the offense referred to in Article 73, fifth paragraph, of Presidential Decree no. 309 of 9 October 1990 (Consolidated text of laws concerning the regulation of narcotics and psychotropic substances, prevention, treatment, and rehabilitation of related states of drug addiction), the so-called "minor drug dealing” («piccolo spaccio»), a statutory category which the referral order considers substantially overlapping with the «present situation». He also cites the more recent legislative context and, specifically, Law no. 114 of 9 August 2024 (Amendments to the criminal code, the code of criminal procedure, the judiciary, and the military criminal code), which, in Article 1, letters b) and e), repealed the offense of abuse of office (Article 323 of the Criminal Code) and narrowed the scope of application of the offense of trafficking in illicit influences, as well as the reform of Article 4-bis of Law no. 354 of 26 July 1975 (Rules on the penitentiary system and the execution of measures depriving and limiting liberty), which excluded a substantial portion of offenses against public administration from the «catalog of offenses barring prison benefits». Such interventions «modulating the criminal treatment of offenses against Public Administration», although differing in their respective purposes, would reveal, in the referring judge's view, a «common denominator», consisting in the adoption of a «more selective and calibrated approach», centered on the proportionality of the criminal response and the rehabilitative function.
7.– The doubt of constitutional illegitimacy raised with reference to Article 27, third paragraph, of the Constitution is likewise not manifestly unfounded. The suspension of proceedings with probation – the referring judge observes – fulfills «in an anticipated and alternative form the rehabilitative function», imposing upon the individual the assumption of responsibility, the elimination or mitigation of the consequences of the offense through restorative and compensatory conduct, as well as the performance of community service and individualized programs agreed upon with the external criminal enforcement office. The preclusion deriving from Article 168-bis of the Criminal Code would instead operate «mechanically, without any assessment of the concrete case», preventing access to such pathways even for defendants with no prior criminal record, cooperative and willing to engage in restorative conduct, which – according to the referring judge – is the case of the defendant in the a quo proceedings. The referral order also invokes the principle of proportionality of sentencing as a corollary of Articles 3 and 27 of the Constitution, deeming «manifestly disproportionate» a legal framework that excludes probation in a general and absolute manner «for offenses with a statutory penalty range slightly exceeding four years, but permits [it] for offenses punished with up to eight years».
8.– Lastly, the a quo judge alleges the violation of Article 76 of the Constitution, noting that, in implementation of the delegation principles provided for by Article 1, twenty-second paragraph, letter a), of Law no. 134 of 27 September 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as regarding restorative justice and provisions for the swift definition of judicial proceedings), the Government should have extended the scope of application of the suspension of proceedings with probation «to specific offenses punished with a custodial statutory penalty not exceeding a maximum of six years, which lend themselves to resocializing or restorative pathways». Legislative Decree no. 150 of 10 October 2022 (Implementation of Law no. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the swift definition of judicial proceedings) instead maintained the general four-year threshold and limited itself to broadening, by other means, the scope of application of the institution through reference to the procedural list of Article 550, second paragraph, of the Code of Criminal Procedure, leaving excluded the offenses charged against the defendant, even though they are punished within the maximum statutory limit of six years and are suitable for restorative and resocializing pathways, resulting, according to the referring judge, in an arbitrary lowering of the threshold established by Parliament.
9.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office (Avvocatura generale dello Stato), arguing that the aforementioned questions are unfounded.
10.– State defense observes, first, that the criterion indicated in Article 168-bis of the Criminal Code constitutes the expression «of a criminal policy choice that is not manifestly unreasonable in itself», falling within the broad discretion of the legislature, and that «[a]ny disharmonies» cannot be deemed to automatically exist due to the «sole statutory penalty difference between included categories and excluded categories», but must be evaluated in light of «the structure and [the] legal objectivity of the excluded offense». Moving from this consideration, the State Attorney's Office points out that receiving stolen goods belongs to the category of offenses against property and is configured as a crime of harm (reato di danno), characterized by the necessary provenance of the asset from a preceding offense. It adds, furthermore, that the offenses of violence or threat, resistance, and contempt of a public official, although traceable to the area of offenses against public administration, possess a plurioffensive nature, being directed to protect also physical and moral freedom, prestige, or the honor of the public official. Conversely, the offenses forming the subject matter of the a quo proceedings are designed to safeguard, respectively, the image of impartiality of the administration and the regularity of contractor selection procedures, and are characterized by a particularly early threshold of protection. From such «substantial heterogeneity» of the compared categories, as regards the legal interests protected and the modalities of the offense, there follows the unsuitability of the tertia comparationis invoked to substantiate the denounced disparity of treatment.
11.– The deduced contrast with the rehabilitative purpose of the penalty should also be ruled out, since, in the balancing of interests «between the favor for probation institutions and the requirement of a traditional punitive response» for certain categories of offenses, «the definition of the breadth of the range of possibilities for the defendant's rehabilitation» falls within the reasonable exercise of legislative discretion, other institutions being likewise present in the legal system, such as alternative measures to detention and conditional suspension of the sentence, «likewise inspired by the avoidance of sentencing to a penalty» perceived as disproportionate and, therefore, «such as not to foster the resocialization of the convicted person».
12.– Lastly, the State Attorney's Office argues that the delegating legislature's intent was not to «indiscriminately extend» the scope of application of probation to all offenses punished with custodial penalties not exceeding a maximum of six years, but rather to broaden, within such criteria, the number of exceptions to the ordinary four-year limit, with «margins of discretion and free appraisal» in the selection of statutory categories. In this perspective, the implementation of the delegation occurred through the inclusion of offenses deemed consistent with such preconditions, so that the censure referring to Article 76 of the Constitution should also be deemed unfounded.
13.– G. D. entered an appearance in the proceedings, insisting on the acceptance of the questions submitted for examination by this Court. Defense for the party argues that Legislative Decree no. 150 of 2022 disregarded the enabling law, where it mandated to «extend the scope of application of the suspension of proceedings with probation», beyond the cases referred to in Article 550, second paragraph, of the Code of Criminal Procedure, to «further specific offenses» punished with a custodial penalty not exceeding a maximum of six years. The current legal framework also gives rise to an unreasonable disparity of treatment, since it permits probation for offenses «of the same kind» and at times more serious, while excluding instead the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code, with a «paradoxical inversion of the scale of gravity» between homogeneous categories. On the basis of the arguments put forward by this Court in judgment no. 90 of 2025, the defendant therefore argues the violation of Articles 3, 27, third paragraph, and 76 of the Constitution.
14.– As to the concrete case, defense for the party points out that the conditions for the abstract applicability of the institution are met, the defendant having «never availed himself of probation in the past» and no barring conditions existing against him. The favorable prognosis regarding future abstention from crime is also corroborated by the cessation of any relationship with the company involved in the facts, the absence of employment activity within the public administration, and the finding, by the external criminal enforcement office (UEPE), of the «existence of conditions for admission to the institution», the relative «treatment program» having already been acquired.
15.– By a brief filed on 2 September 2026, G. D. replied to the State Attorney's intervention brief, reiterating and developing some of the arguments already put forward. In particular, he argues that the exclusion of trafficking in illicit influences from probation constitutes a «collateral, mechanical, and unweighted effect» of the increase in the maximum statutory penalty ordered in 2019, and that such an outcome is even less justifiable in light of the «incisive reduction of the sphere of application» of Article 346-bis of the Criminal Code effected by Law no. 114 of 2024. As to Article 76 of the Constitution, he deduces that the delegated legislature applied «a third criterion», identified as ease of procedural ascertainment, «which the enabling law did not contemplate». He then specifies that the reference to the offense of receiving stolen goods does not fulfill the function of a tertium comparationis, but rather serves «as an index of the dysfunction produced by the referral mechanism in the selection of offenses admitted to the institution». Finally, he adds, any additive intervention should affect solely Article 168-bis, first paragraph, of the Criminal Code, Article 550, second paragraph, of the Code of Criminal Procedure not being «in itself, constitutionally illegitimate».
The Law in Brief
16.– The Judge of the Preliminary Hearing at the Court of Pescara questions the constitutional legitimacy of the combined provisions of Articles 168-bis, first paragraph, 346-bis, and 353-bis of the Criminal Code and Article 550, second paragraph, of the Code of Criminal Procedure, insofar as they exclude the offenses of trafficking in illicit influences and disruption of freedom of the contractor selection procedure from the scope of application of the suspension of proceedings with probation.
17.– The questions stem from the observation that Article 168-bis, first paragraph, of the Criminal Code permits access to the institution «[i]n proceedings for offenses punished with a fine alone or with a custodial statutory penalty not exceeding a maximum of four years, alone, combined, or alternative to a fine, as well as for the offenses indicated in paragraph 2 of Article 550 of the code of criminal procedure», namely among those for which direct citation for trial is provided. Conversely, the offenses of trafficking in illicit influences and disruption of freedom of the contractor selection procedure are punished with imprisonment of up to four years and six months and up to five years, respectively, and are not among those for which direct citation for trial is provided.
18.– In the referring judge's view, such exclusion gives rise to an unreasonable disparity of treatment in violation of Article 3 of the Constitution. Indeed, as an effect of the reference made by Article 168-bis of the Criminal Code to Article 550, second paragraph, of the Code of Criminal Procedure, probation would be permitted for categories with higher statutory penalty ranges, such as receiving stolen goods, and for certain offenses against public administration, such as violence or threat, resistance, and contempt of a public official, but would remain precluded for the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code, even though such categories present similar or even lower statutory penalty ranges compared to some offenses admitted to the institution and are, according to the referring judge, equally suitable for initiating restorative and resocializing pathways.
19.– Article 3 of the Constitution would also be violated from the standpoint of the intrinsic unreasonableness of the legislation, since the selective criterion outlined by Article 168-bis, first paragraph, of the Criminal Code is consistent neither with the «reward-based and rehabilitative» purpose of probation, nor with the recent legislative trend of «modulating the criminal treatment» of offenses against public administration, centered on the proportionality of the sanctioning response.
20.– The censured legislation is also allegedly in contrast with Article 27, third paragraph, of the Constitution, since it prevents access to the institution even for defendants with no prior criminal record who are willing to undertake restorative pathways, without allowing any assessment of the concrete case; furthermore, it violates Article 76 of the Constitution, due to the incomplete implementation of enabling Law no. 134 of 2021, which provided for the extension of probation «to specific offenses punished with a custodial statutory penalty not exceeding a maximum of six years» deemed suitable for «resocializing or restorative pathways», whereas the implementing legislative decree, by maintaining the four-year threshold, arbitrarily lowered the one established by Parliament and left excluded the offenses charged against the defendant.
21.– No preliminary exceptions have been raised and, in any event, in light of what is reported in the referral order, there are no doubts as to the relevance (rilevanza) of the questions. Indeed, the referring judge accounts for the existence of all prerequisites for access to the institution, but observes that he cannot order it, since the offenses being prosecuted do not fall among those for which Article 168-bis, first paragraph, of the Criminal Code permits probation, being punished with a maximum custodial penalty exceeding four years and not appearing among those indicated by Article 550, second paragraph, of the Code of Criminal Procedure. If the preclusion were removed, the judge would have to proceed to the assessments under Article 464-quater, third paragraph, of the Code of Criminal Procedure (which the referring judge considers likely to have a positive outcome), whereas if it remained in force he would have to reject the request solely on the basis of the normative limit of access to the institution. The questions therefore have an actual and direct impact on the determination of the a quo proceedings.
22.– Moreover, the referring judge proceeds from a correct hermeneutic premise where he deems a constitutionally oriented interpretation of the censured provisions unfeasible. On the one hand, in fact, the statutory threshold provided for by Article 168-bis, first paragraph, of the Criminal Code is established in objective terms; on the other hand, the list of offenses referred to by Article 550, second paragraph, of the Code of Criminal Procedure is taxative and not susceptible to expansion by way of interpretation.
23.– However, the subject matter of the questions must be delimited.
In line with what was affirmed by judgment no. 90 of 2025, those having as their object Articles 346-bis and 353-bis of the Criminal Code must indeed be declared inadmissible, since such provisions are «extraneous and not pertinent to the content of the questions now under examination, which do not concern the sentencing dosimetric framework» of the offenses considered in themselves (point 5.2.). The referring judge, in fact, invokes them only to identify the criminal categories forming the subject matter of the main proceedings and the consequent preclusion of probation, without contesting their conformity with the Constitution or their respective statutory penalty ranges.
24.– Questions having as their object Article 550, second paragraph, of the Code of Criminal Procedure are likewise inadmissible. As clarified by the aforementioned judgment, an additive intervention on such a provision, through the inclusion of the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code in the catalog provided therein, «would produce effects exceeding the denounced vulnus», making «applicable to the criminal category in question the entire procedural discipline of the simplified trial of direct citation for trial, in place of solely the institution of suspension of proceedings with probation». Moreover, constitutional jurisprudence is firm in the sense that «the petitum of the referral order "has the function of clarifying the content and direction of the censures”, but does not bind this Court, which, "should it deem the questions well-founded, remains free to identify the most suitable ruling for the reductio ad legitimitatem of the censured provision” (ex multis, judgments no. 138, no. 90, and no. 12 of 2024)» (judgment no. 90 of 2025, point 5.4.).
25.– The subject matter of the questions must therefore be circumscribed to Article 168-bis, first paragraph, of the Criminal Code, which establishes, as a general rule, the limits of applicability of probation.
26.– On the merits, the questions are unfounded.
27.– Moving as a matter of priority from the alleged violation of Article 76 of the Constitution, it is first necessary to reconstruct the content of the delegation and the modalities of its implementation.
28.– Article 1, twenty-second paragraph, letter a), of Law no. 134 of 2021 delegated the Government to extend the scope of application of the suspension of proceedings with probation, beyond the cases provided for by Article 550, second paragraph, of the Code of Criminal Procedure, to «further specific offenses, punished with a custodial statutory penalty not exceeding a maximum of six years, which lend themselves to resocializing or restorative pathways» compatible with the institution (judgment no. 146 of 2023, point 5). In the exercise of the delegation, therefore, Legislative Decree no. 150 of 2022 broadened the list of offenses prosecuted by direct citation for trial contained in Article 550, second paragraph, of the Code of Criminal Procedure. As an effect of the mobile reference made by Article 168-bis, first paragraph, of the Criminal Code, this intervention extended the applicability of probation to numerous categories punished with imprisonment of a duration exceeding the ordinary four-year limit.
29.– As observed by judgment no. 146 of 2023, «the list of offenses subject to direct citation […], for which […] probation is also possible, [thus] became enriched with numerous offenses, all on average punished with a statutory penalty of five years of imprisonment, at times even six years; therefore beyond the four-year threshold referred to in Article 168-bis, first paragraph, of the Criminal Code» (point 5). The same ruling observed that the legislature, «even after the recent reform of 2022 (Legislative Decree no. 150 of 2022) which left unvaried, in this part, the provision of Article 168-bis of the Criminal Code, remained firm in its initial choice to identify the offenses for which probation is permitted on the basis of the custodial statutory penalty provided in an amount not exceeding a maximum of four years», qualifying it as «a criminal policy choice entrusted to the legislature's discretion» (judgment no. 146 of 2023, point 8). Such modality of implementation is confirmed by the explanatory report to the legislative decree (on whose value, order no. 175 of 2026, which in turn cites judgments no. 139 of 2025, no. 81 of 2025, and no. 175 of 2022), which clarifies that «Parliament's choice was not to indiscriminately extend the scope of application of the institution to offenses punished with a custodial statutory penalty not exceeding a maximum of six years», but rather to «broaden the number of exceptions» to the ordinary four-year threshold, on the basis of «two concurrent criteria»: the aptitude of the offenses for resocializing or restorative pathways and the provision of a custodial statutory penalty not exceeding a maximum of six years. For «reasons of technique and legislative economy», the delegation was therefore implemented «by coordinating the interventions» concerning Articles 168-bis of the Criminal Code and 550, second paragraph, of the Code of Criminal Procedure and broadening the catalog provided by the latter provision with offenses that, «besides presenting no particular difficulties of ascertainment, lend themselves to resocializing or restorative pathways».
30.– The reconstruction conducted thus far points to the conclusion that, in referring to «further specific offenses» punished within the maximum limit of six years and suitable for resocializing or restorative pathways, the guiding criterion entrusted the delegated legislature with the selection of the statutory categories to be included, without imposing upon it either to generally raise the threshold provided by Article 168-bis, first paragraph, of the Criminal Code, or to include all offenses punished within that limit. The failure to include the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code therefore does not conflict with the delegation, which did not mention such categories, nor prescribed the inclusion of all offenses against public administration punished with a custodial statutory penalty not exceeding a maximum of six years. Nor can the chosen legislative technique be deemed eccentric with respect to the guiding criterion, since the broadening of the catalog of Article 550, second paragraph, of the Code of Criminal Procedure resulted, by effect of the pre-existing mobile reference, in the corresponding extension of the scope of application of probation, thereby realizing the purpose pursued by the delegation.
31.– Even assuming that such purpose was not fully implemented, the censure would nonetheless be unfounded. Indeed, this Court has already clarified that «the failure or incomplete exercise of the delegation does not in itself entail the violation of Articles 76 and 77 of the Constitution, unless this determines a distortion of the enabling law». In the absence of such an alteration, the delegated legislature's omission may determine a political responsibility of the Government towards Parliament, «certainly not a constitutionally appreciable violation of law» (judgment no. 81 of 2025, point 5, which cites order no. 283 of 2013 and judgments no. 304 of 2011, no. 149 of 2005, and no. 8 of 1977).
32.– In the present case, the failure to include the offenses of trafficking in illicit influences and disruption of freedom of the contractor selection procedure does not determine that «distortion of the enabling law» which would assume constitutional relevance. It concerns, in fact, specific offenses not explicitly contemplated by the enabling law and, therefore, is not capable «of undermining the overall design of the delegating legislature», nor of «fundamentally prejudicing» the project pursued by it (judgment no. 81 of 2025, point 5.1.).
33.– The censure whereby the referring judge denounces, with reference to Article 3 of the Constitution, the unreasonableness of the illustrated selective criterion adopted by the legislature to identify the offenses for which probation is permitted is likewise unfounded.
34.– In this regard, this Court «has already repeatedly recognized the legislature's "broad discretion in defining the objective limits” […] within which the institutions of punitive "non-custodial” criminal law may find application». It has also specified that such discretion may be exercised both through reference to «penalty limits» and through the identification of «specific titles of offenses (identified by name or, as in this case, through reference to a category defined by another provision)», provided that the choice is not «manifestly unreasonable, creating unsustainable disparities of treatment» (judgment no. 191 of 2025, point 3.2., citing judgments no. 157 and no. 139 of 2025).
35.– In application of these principles, this Court has already traced back to legislative discretion the choice to flank the statutory penalty limit criterion with the «mobile reference to all offenses indicated in paragraph 2 of Article 550 of the code of criminal procedure», clarifying that it belongs to the «very logic» of such legislative technique, «common in the fabric of the criminal code», that probation may be permitted also for categories whose maximum statutory penalty exceeds the threshold established by Article 168-bis of the Criminal Code. It therefore drew the conclusion that delimiting the scope of application of the institution through such reference constitutes «a criminal policy choice that is not manifestly unreasonable in itself» (judgment no. 191 of 2025, point 3.2., citing judgment no. 139 of 2025).
36.– In light of the considerations set forth above, the legislative choice to identify the offenses for which probation is permitted through the mixed criterion outlined by Article 168-bis of the Criminal Code cannot be deemed manifestly unreasonable.
37.– Nor do the normative interventions cited in the referral order lead to a different conclusion; while attesting to a trend by the legislature to remodel the treatment of certain offenses against public administration according to criteria of greater selectivity and proportionality, they pertain to different institutions and purposes and, therefore, are not capable of rendering constitutionally necessary the extension of probation to the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code.
38.– The foregoing, however, does not preclude that the reference to a provision enacted for a different institution may, in concrete terms, create «unsustainable disparities of treatment» or lead «to manifestly disproportionate results» with respect to specific offense hypotheses (judgment no. 191 of 2025, point 4, again citing judgment no. 139 of 2025). The categories listed in Article 550, second paragraph, of the Code of Criminal Procedure, in fact, «present elements of considerable disharmony, to the extent that it is problematic to identify a univocal and coherent inspiring ratio» and were selected to delimit the scope of application of direct citation for trial, a procedural institution «having a nature and function not overlapping with those underlying probation» (judgment no. 191 of 2025, point 4, citing judgment no. 157 of 2025). Moreover, the relative catalog «has become enriched with numerous offenses, all on average punished with a statutory penalty of five years of imprisonment, at times even six years», and thus beyond the ordinary four-year threshold (again judgment no. 191 of 2025, point 3.2., citing judgment no. 146 of 2023).
39.– This Court can remedy any systemic disharmonies deriving from such selective technique, as already occurred with judgment no. 90 of 2025, only where it verifies in concrete terms that the offense excluded from the scope of application of probation and subjected to its review «deserves instead to be included therein, by virtue of its structure and its legal objectivity», including through «a comparative analysis with the criminal categories included in the catalog referred to in Article 550, second paragraph, of the Code of Criminal Procedure» (judgment no. 191 of 2025, point 4). Such verification will be carried out below (points 44 et seq.), in examining the question concerning the alleged violation of Article 3 of the Constitution under the profile of disparity of treatment.
40.– The censure raised with reference to Article 27, third paragraph, of the Constitution is unfounded.
41.– Indeed, this Court has already clarified that probation pursues «special-preventive purposes at an anticipated stage, in which the cognition-execution sequence of the penalty is "broken”, for the purpose of achieving the subject's resocialization» (judgment no. 90 of 2025, point 5.5.1., citing judgment no. 91 of 2018) and «designs a rehabilitative and restorative pathway, alternative to the trial [as well as] to the penalty [...], which leads, in case of a positive outcome, to the extinction of the offense» (judgment no. 90 of 2025, point 5.5.2., citing judgment no. 146 of 2022). However, the resocializing vocation of the institution does not entail that Article 27, third paragraph, of the Constitution mandates its application to every offense abstractly compatible with restorative conduct or to every defendant with respect to whom a prognosis of abstaining from committing offenses may be formulated. Admission to probation requires, in fact, the verification of the suitability of a treatment program that is «broadly modulable, [defined] taking into account the defendant's personality and the offenses forming the subject matter of the charge» (judgment no. 90 of 2025, point 5.5.2.).
42.– Moreover, the rehabilitative purpose does not exhaust the functions of probation, which also fulfills a «sanctioning and deflationary» purpose. It follows that the legislature, in determining its scope of application, may take into account not only elements concerning the defendant's person, but also «other factors, such as the protected legal interest, the incriminated conduct, or the sanctioning treatment» (judgment no. 191 of 2025, point 3.3.).
43.– Hence, with regard to the offenses at issue, the extension of the possibility of ordering probation cannot be deemed constitutionally necessary for the sole fact that it could contribute to the pursuit of the subject's reintegration purposes. Constitutional jurisprudence has already highlighted that other institutions are «likewise inspired by the avoidance of sentencing to a penalty that may be perceived as disproportionate and therefore such as not to foster the resocialization of the convicted person» (judgment no. 157 of 2025, point 5, citing judgment no. 146 of 2023). The exclusion of the offenses referred to in Articles 346-bis and 353-bis of the Criminal Code from the scope of application of probation therefore does not compromise the rehabilitative function of the penalty. Nor do elements relating to the defendant's personal condition and the suitability of the treatment program recalled by the referring judge assume decisive relevance, since they come into consideration only after the abstract admissibility of the institution for the charged offense has been ascertained.
44.– It remains to examine the censure of violation of Article 3 of the Constitution under the profile of disparity of treatment between the offenses forming the subject matter of the a quo proceedings and the categories, invoked as tertia comparationis, for which probation is permitted by virtue of the reference to Article 550, second paragraph, of the Code of Criminal Procedure. The comparison, however, cannot be conducted solely on the basis of the statutory penalty ranges or the common belonging of the offenses to the same systematic area, as the referral order seems to suggest.
45.– Indeed, according to settled constitutional jurisprudence, «the comparison between normative categories, aimed at verifying the non-manifest unreasonableness of legislative choices – in this case regarding abstract admissibility to probation – must have as its object homogeneous cases, otherwise the comparison itself is unproposable (judgments no. 120 of 2023, no. 156 of 2020, no. 282 of 2010, and no. 161 of 2009)» (judgment no. 90 of 2025, point 5.5.1.). To this end, it is first necessary to examine the constituent elements of the compared categories, with regard to the active subject, prerequisites, conduct, material object, subjective element, consummation moment, form of the offense, and legal objectivity. Where heterogeneity emerges on a structural plane, it must then be verified whether the comparison may nonetheless proceed by reason of a «similarity of disvalue», deducible «from the identity of legal interests and the anticipation of their criminal protection» (judgment no. 90 of 2025, point 5.5.1.). However, the common belonging of offenses to the same general category is not sufficient. As clarified by judgment no. 157 of 2025, categories, although «presenting common traits and contact points that justify their placement in the same category», may lack a «homogeneous character in relation to the protected interest, declined in the peculiar specificity of each incriminatory category» (point 4.2.).
46.– Moreover, the comparison cannot be founded on any common element, but solely on profiles that are pertinent with respect to the specific question of constitutionality. Indeed, this Court has recently specified that the judgment of equality in the strict sense is a «judgment of relation» and, more precisely, a judgment of pertinence, since «[a]ll things, persons, or situations are similar for some profile and dissimilar for some other, so that, in order to perform a comparison between them that makes sense, it is necessary to establish which profile is relevant» (judgment no. 54 of 2026, point 9.1.). The suitability of the tertium comparationis must therefore be appreciated first and foremost from the perspective imposed by the Constitution, namely on the basis of the constitutional rights, duties, or interests at stake, since «in the judgment of equality, […] only the profiles for which one discusses such specifically constitutional rights, duties, or interests are relevant». Furthermore, «the requirements of systematic coherence and the purposes pursued by the provision subject to constitutional legitimacy control and by that assumed as a tertium» must be distinctly considered, which must be coherent and at least not unworthy of constitutional protection (judgment no. 54 of 2026, point 9.1.; in the same sense judgments no. 158, no. 154, and no. 85 of 2026).
47.– Only where, at the end of such verification, the substantial homogeneity of the categories and the pertinence of the tertium comparationis result, may one proceed to compare the respective statutory penalty ranges, in order to ascertain whether the censured legislation has determined «an anomaly, overturning the scale of gravity between the two compared criminal figures», as an effect of which «[t]he less serious hypothesis is subject to more rigorous treatment» regarding the admissibility of probation, as observed by judgment no. 90 of 2025 in comparing the offense of production, trafficking, and illicit detention of minor quantities of narcotic substances and that of incitement to the illicit use of narcotic substances (point 5.5.1.). When, instead, the categories, although presenting «common traits and contact points» that justify their placement in the same category, lack a «homogeneous character in relation to the protected interest, declined in the peculiar specificity of each incriminatory category» (judgment no. 157 of 2025, point 4.2.), their substantial heterogeneity, as regards structure and protected legal interests, «determines the unsuitability of the tertium comparationis to serve as a term of reference to verify the alleged violation of the principle of equality», as reiterated by the aforementioned judgment no. 157 of 2025 with regard to the comparison between aiding and abetting (favoreggiamento reale), false testimony, and inducement not to make statements or to make mendacious statements to the judicial authority (point 4.3.).
48.– In light of the criteria outlined thus far, it is first necessary to reconstruct the essential traits of the offenses forming the subject matter of the a quo proceedings, and then verify their comparability with the categories invoked by the referring judge as terms of comparison.
49.– As extensively highlighted by judgment no. 185 of 2025, the offense of trafficking in illicit influences, provided for by Article 346-bis of the Criminal Code, was introduced by Article 1, seventy-fifth paragraph, letter r), of Law no. 190 of 6 November 2012 (Provisions for the prevention and suppression of corruption and illegality in public administration) and last amended by Article 1, first paragraph, letter e), of Law no. 114 of 2024. This is an ordinary crime, with necessary plurisubjective structure, presupposing at least an agreement between the mediator and the subject who gives or promises the economic utility, both subjected to the same penalty. The conduct consists in intentionally utilizing «existing relationships with a public official or a person charged with a public service or one of the other subjects referred to in Article 322-bis», in order to improperly have given or promised, for oneself or for others, «money or other economic utility», intended to remunerate the public agent in relation to the exercise of their functions or to realize another illicit mediation. The latter is defined by the second paragraph as mediation aimed at inducing the public agent «to perform an act contrary to official duties constituting an offense and from which an undue advantage may derive». Therefore, the mere dropping of the public agent's name and relationships merely boasted or asserted are excluded.
50.– The category is indeed articulated into three essential elements, consisting in the intentional use of relationships actually existing with the public agent, the undue giving or promise of an economic utility, and the destination of such utility to remunerate the public agent or to realize an illicit mediation. It responds to the requirement of countering conducts, relationships, connections, and agreements that are positioned in a preliminary or prodromal phase with respect to corrupt pacts. Trafficking in illicit influences therefore operates as a crime-obstacle or outpost of protection, aimed at preventing the corruption of public agents and suppressing the commodification of access to public office before the corrupt pact consolidates or the public agent is effectively involved. From this stems its configuration as an offense of abstract danger, designed to safeguard the autonomy and non-venality of administrative action.
51.– The second offense forming the subject matter of the a quo proceedings is the disruption of freedom of the contractor selection procedure, provided for by Article 353-bis of the Criminal Code. The provision, introduced by Article 10 of Law no. 136 of 13 August 2010 (Extraordinary plan against mafias, as well as delegation to the Government regarding anti-mafia legislation), punishes, «[u]nless the fact constitutes a more serious offense, anyone who, with violence or threat, or with gifts, promises, collusion, or other fraudulent means, disrupts the administrative procedure directed at establishing the content of the notice of call for bids or another equivalent act in order to condition the modalities of contractor selection by the public administration».
52.– As to its typical structure, this is an ordinary crime, with bound form and specific intent (dolo specifico). The disruption must be realized through one of the modalities indicated by the provision and must be directed at conditioning the modalities of contractor selection. The category therefore protects the regularity and impartiality of the preparatory phase of the selective procedure, preventing the content of the notice or equivalent act from being oriented, through coercive («violence or threat»), collusive («gifts, promises, collusion»), or fraudulent («other fraudulent means») conducts, in favor of a specific contractor even before the call for bids or the holding of the auction.
53.– Trafficking in illicit influences and disruption of freedom of the contractor selection procedure therefore present significant common traits. Both belong to the area of offenses against public administration and protect, for different profiles, the smooth running and impartiality of administrative action, anticipating criminal protection with respect to the full impairment of the protected interest. The first intervenes in the phase of relations and illicit mediations prodromal to possible corruption; the second in the phase of formation of acts destined to regulate contractor selection, prior to the call for bids and the holding of the auction. The two categories thus safeguard particularly sensitive junctures of administrative function, protecting, respectively, the autonomy and non-venality of public action and the regularity and impartiality of the preparatory phase of the selective procedure. Furthermore, both are delimited by reservation clauses with respect to more serious offenses against public administration, consistently with their function of anticipated protection against corruption phenomena or disturbances of greater intensity.
54.– The terms of comparison indicated by the referring judge are receiving stolen goods, contempt, violence or threat, and resistance to a public official, all offenses included in the catalog of Article 550, second paragraph, of the Code of Criminal Procedure and for which access to probation is permitted through this route. They nevertheless present structural and offensive characteristics distinct from those proper to the offenses forming the subject matter of the a quo proceedings.
55.– As for receiving stolen goods, the comparison outlined in the referral order seems to be founded essentially on the statutory penalty range. Article 648 of the Criminal Code sanctions anyone who, outside the cases of participation in the offense and for the purpose of procuring a profit for themselves or others, «acquires, receives, or conceals money or things coming from any crime, or in any way intervenes in causing them to be acquired, received, or concealed», with «imprisonment from two to eight years and a fine from 516 to 10,329 euros». The maximum penalty is, therefore, significantly higher than those provided for trafficking in illicit influences and for disruption of freedom of the contractor selection procedure, but this in itself is not sufficient to render the categories comparable.
56.– Indeed, receiving stolen goods presupposes the commission of a preceding offense, in which the receiver has not participated, and is realized through the acquisition, receipt, concealment of money or things of illicit provenance, or intervention directed at favoring their acquisition, receipt, or concealment, with awareness of such provenance and for the purpose of procuring a profit for oneself or others. The category therefore intervenes in a phase subsequent to the commission of the presupposed offense and protects a legal interest different from the smooth running and impartiality of administrative action.
57.– The offenses forming the subject matter of the proceedings, instead, do not presuppose an offense already consummated, nor do they have as their object money or things of illicit provenance, but anticipate criminal protection with respect to the possible impairment of the impartiality and regularity of administrative action. The analogies discernible in the intermediation activity and in the pursuit of an own or others' advantage do not affect the structural and offensive elements of the categories and are not pertinent with respect to the specific question of equality of treatment.
58.– The structure of contempt of a public official is also different. Article 341-bis of the Criminal Code punishes with imprisonment from six months to three years «[a]nyone who, in a public place or a place open to the public and in the presence of several persons, offends the honor and prestige of a public official while performing an official act and because of or in the exercise of their functions». This is an ordinary crime, with free form, in which the offense, committed under the particular conditions of place and publicity required by the norm, must strike the public official in the quality and authority connected with the exercise of the function. The category is generally deemed plurioffensive, since it protects, alongside the civil honor of the official, the prestige of the function and the regular performance of administrative activity.
59.– However, common belonging to offenses against public administration and the connection with the exercise of public function do not suffice to overcome the differences between the categories. Contempt represses an offense to the honor and prestige of the public official, perpetrated on the occasion of the performance of an official act and characterized by the resonance deriving from the presence of several persons. Trafficking in illicit influences and disruption of freedom of the contractor selection procedure, instead, safeguard the correct exercise of administrative function, preventing, respectively, the commodification of relations with the public agent, in a phase prodromal to possible corruption, and the illicit conditioning of acts destined to regulate contractor selection. Common profiles thus remain recessive compared to differences concerning typical structure, specific legal objectivity, the moment of the offense, and the function of protection.
60.– Greater proximity could, at first reading, be discerned with the offenses of violence or threat and resistance to a public official, both characterized by violent or threatening interference with the activity of the public administration. Article 336 of the Criminal Code punishes with imprisonment from six months to five years «[a]nyone who uses violence or threat against a public official or a person charged with a public service, to compel them to perform an act contrary to their duties, or to omit an act of the office or service»; the same article provides for imprisonment of up to three years «if the fact is committed to compel any of the [aforesaid] persons to perform an act of their office or service, or to influence them in any way». Article 337 of the Criminal Code in turn punishes with imprisonment from six months to five years «[a]nyone who uses violence or threat to oppose a public official or a person charged with a public service, while performing an act of office or service, or those who, upon request, render assistance to them».
61.– On a structural plane, both are ordinary crimes with bound form, placed to protect the regular performance of administrative activity and the moral freedom or freedom of action of the public agent. However, the direction and temporal placement of the interference are different. In Article 336 of the Criminal Code, the use of violence or threat precedes the act and is directed at coercing the formation of functional will, inducing the public agent to perform or omit an act of their office, whereas in Article 337 of the Criminal Code the recourse to such conduct modalities is concurrent with the execution of an act already under way and is aimed at preventing or obstructing it.
62.– Trafficking in illicit influences presents a structure different from that of the offenses just examined, since it does not presuppose the exercise of violence or threat against the public agent, but an agreement between the mediator and the subject who gives or promises the economic utility, founded on the intentional use of actually existing relationships that the mediator themselves maintains with the former. Common belonging to offenses against public administration and the connection with the exercise of public function therefore do not affect the structural and offensive elements relevant for the purpose of comparison.
63.– The comparison between violence or threat to a public official and disruption of freedom of the contractor selection procedure is more articulated. Both are ordinary crimes, require specific intent, and contemplate violence or threat as modalities directed at interfering with the formation of administrative will. Such proximity does not, however, render the categories substantially homogeneous.
64.– In Article 336 of the Criminal Code, the use of violence or threat constitutes the necessary modality of conduct and is directed squarely against the public agent, for the purpose of coercing their freedom of determination, inducing them to perform or omit an act of the office or service, or to perform an act contrary to their duties. In Article 353-bis of the Criminal Code, instead, violence and threat constitute only some of the possible means of realizing the disruption, alternative to gifts, promises, collusion, and other fraudulent means. The alteration of the procedure, therefore, does not necessarily presuppose coercion exerted on the public agent's will, as it may also derive from collusive or fraudulent conducts.
65.– The two categories also differ regarding the object of conditioning. In Article 336 of the Criminal Code, the conduct is directed at coercing the public agent's freedom of determination with respect to an act of office or service not further typified. Article 353-bis of the Criminal Code, instead, selects a specific segment of administrative activity, constituted by the procedure directed at establishing the content of the notice of call for bids or other equivalent act, and requires that the disruption be aimed at conditioning the modalities of contractor selection. The category thus presents a more specific connotation, since it identifies both the procedure upon which the interference must fall and the result toward which it must be aimed.
66.– The structural proximity between the two offenses is therefore merely partial, since it concerns only some of the executive modalities of Article 353-bis of the Criminal Code, which are not representative of the entire category. Furthermore, the described similarities are not decisive for the purpose of the judgment of equality, which requires verifying whether the common elements are pertinent with respect to the specific difference in treatment censured, taking into account also «the requirements of systematic coherence and the purposes pursued by the provision subject to constitutional legitimacy control and by that assumed as a tertium, which must be coherent and at least not unworthy of constitutional protection» (judgment no. 54 of 2026, point 9.1.).
67.– For the aforesaid profile, particular relevance is assumed by the circumstance that the offense of disruption of freedom of the contractor selection procedure, introduced in 2010, retraces the model of the offense of disruption of freedom of auctions, regulated by Article 353 of the Criminal Code, which punishes anyone who, «with violence or threat, or with gifts, promises, collusion, or other fraudulent means, impedes or disrupts the auction in public auctions or private bids on behalf of public Administrations, or drives away bidders». The two provisions employ, not by chance, the same listing of the illicit modalities of conduct, constituted by «violence or threat», «gifts», «promises», «collusion», and «other fraudulent means». They are distinguished principally by the procedural segment upon which such modalities impact. Article 353-bis of the Criminal Code punishes the disruption of the administrative procedure directed at establishing the content of the notice of call for bids or another equivalent act, realized for the purpose of conditioning the modalities of contractor selection; Article 353 of the Criminal Code, instead, punishes anyone who, through the same means, impedes or disrupts the auction in public auctions or private bids on behalf of public administrations, or drives away bidders. The first category thus safeguards the genuineness of the genetic phase of the procedure, while the second protects its free and regular performance after the adoption of the call for bids.
68.– Systematic continuity between the two conducts finds further confirmation in the discipline of the relative consequences on the contract concluded at the outcome of the procedure. Article 122, second paragraph, letter b), of Legislative Decree no. 36 of 31 March 2023 (Public Contracts Code in implementation of Article 1 of Law no. 21 June 2022, no. 78, containing delegation to the Government regarding public contracts) obliges the contracting authority to terminate the contract if against the contractor «a final judgment of conviction has intervened for one of the offenses referred to in Chapter II of Title IV of Part V of this Book». Among such offenses, Article 94, first paragraph, letter b), expressly includes the offenses, consummated or attempted, referred to in Articles 353 and 353-bis of the Criminal Code, without contemplating that provided for by Article 336 of the Criminal Code. The discipline of probation also groups the two categories together, since neither of them is included in the catalog of Article 550, second paragraph, of the Code of Criminal Procedure and both remain excluded from the scope of application of the institution, inasmuch as they are also punished with a custodial penalty exceeding a maximum of four years.
69.– The identity of discipline, with respect to both the fate of the contract and access to probation, reflects the legislative choice to subject to the same treatment conducts that compromise the freedom and regularity of awarding procedures, both in the preparatory phase and in the competitive one, confirming the structural and functional continuity between the two incriminations and the particular disvalue attributed to them. Permitting probation for solely the offense of disruption of freedom of the contractor selection procedure would crack such systematic coherence, opening access to the institution for the disruption of the preparatory phase and continuing to exclude it for the corresponding conduct impacting on the auction already called.
70.– In light of the comparative examination conducted thus far, the differences found in the typical structure and specific legal objectivity of the considered offenses, together with the absence of common profiles pertinent with respect to the censured disparity of treatment, determine the unsuitability of all tertia comparationis invoked by the referring judge. Therefore, it is not necessary to proceed to the comparison between the respective statutory penalty ranges and probation access regimes.
71.– For the reasons set forth above, the questions of constitutional legitimacy of Article 168-bis, first paragraph, of the Criminal Code, insofar as it does not permit the suspension of proceedings with probation for the offenses of trafficking in illicit influences and disruption of freedom of the contractor selection procedure, raised with reference to Articles 3, 27, third paragraph, and 76 of the Constitution, must be declared unfounded.
on those grounds
THE CONSTITUTIONAL COURT
1) declares inadmissible the questions of constitutional legitimacy of Article 550, second paragraph, of the Code of Criminal Procedure and of Articles 346-bis and 353-bis of the Criminal Code, raised, with reference to Articles 3, 27, third paragraph, and 76 of the Constitution, by the Judge of the Preliminary Hearing at the Ordinary Court of Pescara by the order indicated in the headpiece;
2) declares unfounded the questions of constitutional legitimacy of Article 168-bis, first paragraph, of the Criminal Code, raised, with reference to Articles 3, 27, third paragraph, and 76 of the Constitution, by the Judge of the Preliminary Hearing at the Ordinary Court of Pescara by the order indicated in the headpiece.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 23 September 2026.
Signed:
Giovanni AMOROSO, President
Maria Alessandra SANDULLI, Rapporteur
Roberto MILANA, Chancellor Director
Filed in the Chancery on 2 November 2026
The anonymized version conforms, in its text, to the original
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