Sentenza n. 181 del 2026

Judgment No. 181 of 2026 - AI translated

JUDGMENT NO. 181

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Article 227, first and second paragraphs, of the Military Penal Code of Peacetime, brought by the Court of Cassation, First Criminal Section, in the criminal proceedings against G. M., by means of the order of October 21, 2025, registered as no. 244 of the 2025 register of orders and published in the Official Gazette of the Republic no. 52, first special series, for the year 2025.

Having regard to the appearance in the proceedings of G. M. and the intervention of the President of the Council of Ministers;

having heard Judge Rapporteur Massimo Luciani at the public hearing of June 10, 2026;

having heard attorney Anna Maria Santoro for G. M. and State Attorney Antonio Trimboli for the President of the Council of Ministers;

having deliberated in the chambers on June 10, 2026.

Riting in fact

1.– By order of October 21, 2025 (registered as ord. reg. no. 244 of 2025), the Court of Cassation, First Criminal Section, called upon to rule on the appeal brought by G. M., a second-class marshal sentenced to eight months of military imprisonment for the offenses of defamation against the 16th Stormo of the Air Force of Martina Franca, the Carabinieri Station of Martina Franca, and the pro tempore Minister of Defense, raised, at the request of the defendant, questions of constitutional legitimacy regarding Article 227, first and second paragraphs, of the Military Penal Code of Peacetime, to the extent that it does not provide that military defamation be punished, as an alternative to custodial sentence, with a pecuniary penalty.

The aforementioned provision is challenged for alleged contrariety to Articles 21, 52, and 117 of the Constitution, the latter in relation to Article 10 of the European Convention on Human Rights.

1.1.– As regards the facts of the case, the *a quo* judge reports that G. M. is called to answer for the offense of defamation committed by a military person because he stated, in a press release broadcast on two Facebook profiles attributable to him and on the website Infodifesa.it, that the death of an Air Force serviceman was attributable to yet another suicide, to a "silent slaughter" caused—in extreme synthesis—by the climate within the Air Force military corps and that the methods of the investigations conducted by the Carabinieri had ended up in a "blind alley." He further specifies that it was subsequently learned that the death of the serviceman was not due to suicide, but rather to an accidental death.

1.2.– On the point of relevance of the questions, the referring Court premises that relevance also consists in the simple effect determined by the challenged provision on the "argumentative path supporting the decision of the main trial." It further adds that in criminal proceedings the judge is compelled to "formulate any questions of constitutional legitimacy concerning the sentencing treatment at a procedural stage in which they have not yet ruled on the guilt of the defendant." In the present case, the Court of Cassation is called upon to rule first on the first two grounds of appeal, which do not "make [...] the absence of responsibility of the defendant manifestly clear."

Finally, it observes that the sentencing treatment of military defamation lends itself to multiple critical considerations and concludes to the effect that "in light of the above considerations, this Court deems it relevant to address the issue of the type of penalty provided for military defamation."

1.3.– As regards non-manifest infoundness, the referring Court perceives a contrast between the incriminatory provision and Articles 21, 52, and 117 of the Constitution (the latter in relation to Article 10 ECHR), excluding—by virtue of the unequivocal literal tenor of the provision—the possibility of a constitutionally compliant interpretive solution.

The *a quo* judge, premising that freedom of expression is protected both by Article 21 of the Constitution and by Article 10 ECHR, argues that, in light of the settled case law of the European Court of Human Rights, the challenged provision would run counter to Article 10 ECHR, as it would be excessive and disproportionate to provide (even abstractly) for a custodial sentence for defamation offenses, except in exceptional circumstances where there is a serious impairment of other fundamental rights, such as, for example, in the case of hate speech or incitement to violence.

In this sense, the referring judge recalls Order No. 132 of 2020 and Judgment No. 150 of 2021 of this Court, which declared the constitutional illegitimacy of Article 13 of Law No. 47 of February 8, 1948 (Provisions on the press), affirming that the imposition of a custodial sanction (regardless of the possibility of its conditional suspension or its replacement with alternative measures to detention with respect to the individual convict) has now become incompatible with the need "not to deter, through the fear of a penalty depriving personal liberty, journalists in general from exercising their crucial function of scrutiny over the actions of public powers."

These principles, affirmed by constitutional and European case law, should also be recognized with reference to the offense of military defamation, due to the "centrality of the manifestation of thought as a decisive moment in the democratic process of monitoring the legitimacy of the exercise of power."

According to the referring judge, moreover, the acceptance of the questions would not be impeded by Judgment No. 215 of 2017 of this Court, which held that it was not unreasonable not to include military insult (Article 226 of the military penal code of peacetime) within the scope of decriminalization ordered by Legislative Decree No. 7 of January 15, 2016 (Provisions on the repeal of offenses and introduction of offenses with civil pecuniary sanctions, pursuant to Article 2, paragraph 3, of Law No. 67 of April 28, 2014), with reference, inter alia, to "common" insult, in consideration of the "objective of protecting the relationship of discipline understood as a set of rules of behavior, the observance of which is instrumental to the cohesion of the Armed Forces and, consequently, to the requirements of their functionality." The question submitted for review, in fact, does not concern the criminal relevance of the defamatory act, but the proportionality, with respect to the values at stake, of the exclusive custodial penalty.

Moreover, as also recalled by Judgment No. 127 of 2025 of this Court, the legislature has provided comprehensive regulation for trade union activity within the military system with provisions that assume systematic significance in the review of the balancing test urged in relation to the rights guaranteed by Article 21 of the Constitution and Article 10 ECHR.

The doubt of constitutional legitimacy "does not rest on a generalized equating of the common offense of defamation and the military one," it being well understood, as recalled by Judgment No. 273 of 2009 of this Court, that the impairment of strictly publicistic interests in military conduct justifies "the exclusion of proceedings upon a complaint by the injured party for the crime of military defamation and its exclusive subordination to the request of the commanding officer of the corps."

Even given the greater offensive complexity of defamatory conduct relevant to the military system, a requirement of balancing with the value of free manifestation of thought always comes into play, recognized also within the military system, as moreover affirmed by European case law, according to which freedom of expression "does not stop at the gates of army barracks" (reference is made to ECtHR, Grand Chamber, judgments of November 25, 1997, Grigoriades v. Greece, and Third Section, November 8, 2022, Ayuso Torres v. Spain).

These statements are considered part of the process of absorption of the military system into the state system, in compliance with what is sanctioned by Article 52, third paragraph, of the Constitution, according to which the organization of the Armed Forces is shaped by the democratic spirit of the Republic.

The centrality of the democratic spirit would manifest itself in a "collective dimension concerning the contribution that public discussion can provide precisely to the democratic process of constantly framing the armed forces at the service of the Republic."

That being premised, the referring judge notes that, although, generally speaking, the military penal system of peacetime does not recognize pecuniary penalties (Article 22 of the military penal code of peacetime), "it is no longer considered incompatible with the latter (as already noted by the Constitutional Court, Judgment No. 284 of 1995, which recalls certain clarifications of the Constitutional Court, Judgment No. 280 of 1987)." This is both because, in relation to certain offenses, the pecuniary penalty is expressly provided for by virtue of the reference to special laws (Article 3, first paragraph, of Law No. 1383 of December 9, 1941, bearing "Militarization of civil and salaried personnel serving in the Royal Guardia di Finanza and penal provisions for the military personnel of said Corps"), and because, "starting from Constitutional Court Judgment No. 284 of 1995, there is no doubt as to the operativeness of the rules on substitute penalties, including the pecuniary one, for convictions for military crimes." It is in this logic, moreover, that Article 75-*bis* of Law No. 689 of November 24, 1981, bearing "Amendments to the penal system" (inserted by Article 71, paragraph 1, letter *aa*, of Legislative Decree No. 150 of October 10, 2022, bearing "Implementation of Law No. 134 of September 27, 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as in the matter of restorative justice and provisions for the swift settlement of judicial proceedings") was introduced, according to which the provisions of Chapter III of the same law apply to military crimes when the prescriptions are in concrete terms compatible with the subjective position of the convicted person.

Such a change in the regulatory and jurisprudential framework could broaden the scope of application of Article 410 of the military penal code of peacetime, according to which judgments sentencing to pecuniary penalties, pronounced by military tribunals in application of the penal code or special laws, are executed in accordance with the code of criminal procedure, unless the military penal law provides otherwise.

Should this Court decide to uphold the questions—the referring judge adds—it could take into account, as an internal normative paradigm capable of effecting a *reductio ad legitimitatem*, precisely the common offense of defamation (Article 595 of the Penal Code), adopting a solution through "internal lines," which would not alter the specific custodial penalties provided for by the military penal code, but would allow the judge to have available "an instrument constituted by the pecuniary penalty of the fine (*multa*)" capable of sanctioning cases in which the illicit conduct does not reach the threshold of severity that justifies a custodial penalty.

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

2.1.– The questions would be inadmissible for lack of relevance, because they are hypothetical and virtual.

In particular, the referring judge, acting as a court of legitimacy, would not be empowered to intervene on the sentencing treatment (except for annulment without remand) and would not have taken into consideration the rules on substitute penalties, including the pecuniary one, which was admitted by Judgment No. 284 of 1995 of this Court and recently regulated by Article 75-*bis* of Law No. 689 of 1981.

2.2.– The questions would in any case be unfounded, inasmuch as the different sentencing treatment of military defamation and common defamation is calibrated to the different legal interests protected by the two offenses and to the requirements of cohesion of the Armed Forces.

2.3.– By a brief received on May 20, 2026, the defense of the Prime Minister set forth further grounds of inadmissibility of the questions.

First of all, the constitutionally adequate solution proposed by the referring judge (borrowing the alternative pecuniary penalty from the common defamation offense) "would suffer, in the first place, from the difficulty of the imperfect symmetry between the types of offenses regulated by the respective incriminatory provisions," also considering the different severity of the statutory limits provided for the basic and aggravated offenses. The transposition of the levels of pecuniary penalty provided for common defamation into the military norm would require choosing "whether to establish a single measure valid for all the aggravated hypotheses considered therein or whether to sever the unity of their discipline solely for the purposes of the pecuniary response as happens for common defamation": both of which solutions presuppose criminal policy options involving at least in part value choices falling exclusively to the legislature.

Furthermore, "the insertion of the pecuniary penalty into the military offense also raises doubts of soundness from the perspective of systematic reasonableness, considering the fact that the substantial mitigation of the sentencing treatment for most of the sub-offenses of military defamation would make such hypotheses in fact less serious than those of military insult still punished by Article 226 of the military penal code of peacetime with a custodial penalty alone."

3.– G. M., defendant in the *a quo* proceedings, appeared in the proceedings, recalling Judgments No. 273 of 2009 and 150 of 2021 of this Court and highlighting that an application is pending before the ECtHR (proceedings *M. v. Italy*, application no. 6424/24) lodged by the same G. M., convicted for analogous facts by judgment of July 12-December 15, 2023, no. 50155, issued by the Court of Cassation, Seventh Criminal Section, concluding for the acceptance of the questions.

Considered in law

4.– By the order indicated in the heading (ord. reg. no. 244 of 2025), the Court of Cassation, First Criminal Section, called upon to rule on the appeal of G. M., a second-class marshal sentenced to eight months of military imprisonment for the offenses of defamation against the 16th Stormo of the Air Force of Martina Franca, the Carabinieri Station of Martina Franca, and the pro tempore Minister of Defense, raised, at the request of the defendant, questions of constitutional legitimacy regarding Article 227, first and second paragraphs, of the military penal code of peacetime, to the extent that it does not provide that, as an alternative to the custodial penalty, military defamation be punished with a pecuniary penalty.

4.1.– On the point of relevance of the questions, the referring judge premises that it also consists in the simple influence on the "argumentative path supporting the decision of the main trial." It further adds that in criminal proceedings the judge is compelled to "formulate any questions of constitutional legitimacy concerning the sentencing treatment at a procedural stage in which they have not yet ruled on the guilt of the defendant." In the present case, the Court of Cassation is called upon to rule first on the first two grounds of appeal, which—it reports—do not "make [...] the absence of responsibility of the defendant manifestly clear."

4.2.– As regards non-manifest infoundness, the referring judge perceives a contrast of the challenged provision with Articles 21, 52, and 117 of the Constitution (the latter in relation to Article 10 ECHR), also excluding—by reason of its unequivocal literal tenor—the possibility of a constitutionally compliant interpretation.

The *a quo* judge, premising that the freedom of expression of thought is protected both by Article 21 of the Constitution and by Article 10 ECHR, argues that, in light of the settled case law of the Strasbourg Court, the challenged provision would run counter to the aforementioned conventional parameter, as it would be excessive and disproportionate to provide (even abstractly) for a custodial penalty for defamation offenses, rather than limiting it to exceptional circumstances in which a serious impairment of other fundamental rights has occurred, as for example happens in the case of hate speech or incitement to violence.

5.– The President of the Council of Ministers appeared in the proceedings, represented and defended by the State Attorney General's Office, asking that the questions be declared inadmissible or unfounded, arguing—first in the act of intervention, then in the brief—within the terms described in the narrative.

6.– The objections of inadmissibility raised by the defense of the Prime Minister must be rejected.

With the first of the objections formulated in the act of intervention, it is argued that the *a quo* judge, being merely a court of legitimacy, would not be empowered to intervene on the sentencing treatment. In the present case, however, the main proceedings pending before the Court of Cassation, from which the present incidental proceedings stem, were introduced by an appeal containing a ground concerning the disproportion of the custodial penalty for defamation facts not characterized by exceptionally serious features, in accordance with the criteria provided by this Court with Judgment No. 150 of 2021. The questions are therefore relevant, as the referring court must rule on the aspect of the denounced disproportion of the custodial penalty on the basis of conventional and constitutional case law. We find ourselves, therefore, in a situation quite different from that scrutinized (and decided in the sense of inadmissibility) by Judgment of this Court No. 127 of 2025.

It is then suggested that the rules on substitute penalties were not considered, but said objection fails to consider that no ground concerning this profile was devolved to the court of legitimacy, nor does its competence for the direct application of such penalties subsist. In any case, the consideration that the questions subject to scrutiny concern the abstract commination of the custodial penalty for the crime of military defamation and that they are analogous to those decided by this Court with Judgment No. 150 of 2021 appears to be absorbing.

The objection of inadmissibility formulated in the brief deserves to be addressed together with the merits, concerning the profile of the constitutionally adequate solution for the removal of the complained vice of constitutional legitimacy.

7.– As to the merits, for the purpose of greater clarity of exposition, it appears appropriate to briefly recall the regulatory and jurisprudential framework of reference.

7.1.– Article 227 of the military penal code of peacetime punishes military defamation with the penalty of military imprisonment of up to six months (first paragraph). If the offense "consists in the attribution of a determined fact, or is committed by means of the press or any other means of publicity, or in a public instrument," the military imprisonment is from six months to three years (second paragraph). If, finally, "the offense is committed against a military body, or against an administrative or judicial military entity, the penalties are increased" (third paragraph).

These provisions are placed in Chapter III ("Crimes against the person") of Title IV ("Special crimes against the military administration, against public faith, against the person, and against property") of Book II of the Military Penal Code of Peacetime.

In the systematics of the code, this residual category flanks those of "Crimes against fidelity and military defense" (Title I), "Crimes against military service" (Title II), and "Crimes against military discipline" (Title III).

It is appropriate to highlight that, unlike what happened in the preliminary draft—inspired by the principle that the military penal code should contain only typically military crimes—the final draft provided for some criminal figures which, "finding confirmation in common penal law, would have been punishable, in the absence of a special provision in the military penal code, with the penalties established by the penal code, which however do not appear adequate to the effective entity of the fact, having regard to its motive and to the conditions of the person and the environment" ("Report to the King by the Head of the Government, for the approval of the Military Penal Code of Peacetime and the Military Penal Code of War," page 27).

Such figures were qualified as military crimes "due to the particular circumstances in which they are committed and above all due to the [military] quality of the perpetrator and of the victim."

In this way, the application of pecuniary penalties was avoided, extending the principle that pecuniary penalties contradict "the nature of the military crime and that equality of treatment which, in the interest of discipline, it seems necessary in any case to scrupulously maintain" (again, the cited Report, page 27).

Within the scope of crimes against the person, the crime of defamation was therefore inserted, which differs from the common crime referred to in Article 595 of the Penal Code essentially for two profiles: i) the military quality of both the active subject and the passive subject; ii) the sentencing treatment (for all crimes provided for by the military penal code, exclusively the custodial penalty is comminated, whereas for the corresponding common crimes the pecuniary penalty is comminated, either exclusively or—as in the case of defamation—alternatively).

However, the statutory limits of the custodial penalty for military crimes are almost always lower than those of the corresponding common crimes (simple military defamation is punished with military imprisonment of up to six months, simple common defamation is punished with imprisonment of up to one year or with a fine). The *ratio* of such a milder sentencing treatment was "justified by the particular conditions in which military coexistence takes place, whereby certain episodes can be considered a manifestation of youthful exuberance, rather than of wicked sentiments" (Report, page 28). This was a choice having a clear ideological connotation, which, moreover, in legal scholarship, attracted perplexities due to the insufficient protection assured within the Armed Forces to individual safety, honor, and moral freedom of the person, especially in the face of phenomena such as so-called "hazing (*nonnismo*)".

7.2.– The case law of legitimacy that has ruled on military defamation has affirmed that the crime provided for by Article 227 of the military penal code of peacetime "which presents structural identity, as to the objective model of conduct, with the corresponding provision of Article 595 of the Penal Code, is distinguished by the dual requirement of the necessary concurrence of the military quality of both subjects, active and passive, of the crime" (Court of Cassation, First Criminal Section, Judgment of October 27-November 17, 2010, no. 40556), highlighting that "[...] military crimes, falling within the competence of the relative tribunals, are not only those exclusively military, but also those which, despite being provided with identical structure by common penal law, are punished with a specific provision by military penal law" (Court of Cassation, First Criminal Section, Judgment of May 5-May 30, 2008, no. 21863, regarding the crime of defamation committed by a military person against another military person which, despite elements of commonality with the analogous crime provided for by common penal law, is harmful to the honor of the military person and to the interest in the cohesion and order of the Armed Forces).

7.3.– This Court has ruled on the discipline of military defamation with reference to the regime of procedibility and the lack of provision of the so-called *exceptio veritatis*.

By Order No. 410 of 2000, a question of constitutional legitimacy concerning the exclusion of proceedings upon complaint by the injured party for the crime of military defamation and its exclusive subordination to the request of the corps commander provided for by Article 260 of the military penal code of peacetime was declared manifestly unfounded, affirming that "in military crimes [there is] always inherent 'an offense to discipline and service, a lesion therefore of an eminently public interest which does not tolerate subordination to the private interest characteristic of the complaint': a presupposition on the basis of which 'it was preferred to attribute to the corps commander, through the institution of the request,' a power of choice between the adoption of disciplinary measures and resort to ordinary criminal action" (in said order reference is made to Judgments No. 449 of 1991 and No. 42 of 1975 as well as Order No. 229 of 1988).

In particular, in the same ruling it was highlighted that "the projected violation of the principle of equality cannot come into consideration, since the diversity of treatment upon which the *a quo* judge points the finger finds justification in the peculiarity of the situation proper to the citizen inserted in the military system—to whose specific rules he cannot fail to be subject—with respect to that of the generality of other citizens (cf. orders Nos. 224 of 1997, 396 of 1996, 82 of 1994, and 397 of 1997)."

By Judgment No. 273 of 2009, moreover, this Court declared the constitutional illegitimacy, for contrast with the principle of equality, of Article 227 of the military penal code of peacetime, to the extent that it did not provide (and provide) for the applicability also to the crime of military defamation of the so-called *exceptio veritatis* referred to in Article 596, third paragraph, number 1), and fourth paragraph, of the Penal Code.

In that ruling, after reiterating that "the diversity of discipline between the common and military penal systems can be relevant in terms of violation of the principle of equality only where absolute identity between the common and the military crime can be found, both in terms of typical conduct and in terms of the legal objectivity of the crime (see, *ex plurimis*, Judgments No. 272 of 1997 and No. 448 of 1991) and that military crimes are characterized, as their peculiar and intrinsic characteristic, by 'an offense to discipline and service' to which corresponds the general interest of guaranteeing the efficiency and cohesion of the armed forces," this Court stated: "In examining the present question, it must be noted that, except for the aspect, highlighted above, of the immanence in all military crimes of the protection 'of an eminently public interest' such as that of discipline and service, the two provisions compared, military defamation (Article 227 of the military penal code of peacetime) and 'common' defamation (Article 595 of the Penal Code), present full equivalence in terms of both typical conduct and legal objectivity of the crime. Military defamation stands in a relationship of specialty with the corresponding crime provided for by the penal code, being distinguished solely by the quality of the active subject and of the injured party, both of whom must be military personnel, while the textual description of the basic offense of the two incriminatory norms remains identical, namely the offense to another's reputation in communication with multiple persons [...]. If, therefore, the only justifying *ratio* of the different discipline between the two criminal hypotheses regarding the condition of procedibility is the publicistic interest in the protection of discipline and service, further appreciable reasons capable of justifying the different treatment for the purpose of applying the cause of non-punizability of the so-called *exceptio veritatis* are lacking. The presupposition, in fact, for the applicability of the exculpatory proof referred to in Article 596, third paragraph, number 1), of the Penal Code is that the injured party is a public official and that the fact attributed to them refers to the exercise of their functions. It is evident that a public interest in the ascertainment of the fact comes into play which cannot fail to determine the extension of this evidentiary instrument also to what is provided for by Article 227 of the military penal code of peacetime. In the present case, therefore, the extension of the applicability of the exculpatory proof provided for by Article 596, third paragraph, number 1), of the Penal Code to military defamation is not obstructed by the reasons which, on the occasion of Order No. 410 of 2000, precluded the acceptance of the question raised at that time. Moreover, precisely with reference to what was stated in that decision, the protection of the specific requirements of the military system is sufficiently assured by the different system of triggering criminal action."

7.4.– Since the questions subject to the present incidental proceedings of constitutional legitimacy concern the proportionality of the sentencing treatment of the crime of (military) defamation, it is necessary to retrace, albeit briefly, the itinerary of conventional, constitutional, and legitimacy case law regarding common defamation and custodial penalty, with regard to the profile of the proportionality of the sentencing treatment, with particular reference to the abstract provision of the custodial penalty for hypotheses of press defamation punished pursuant to Article 13 of Law No. 47 of 1948.

Significant above all is the contribution of the case law of the ECtHR, which, in underlining the fundamental role of the press as the "watchdog" of democracy (ECtHR, Second Section, Judgment of September 24, 2013, Belpietro v. Italy; Third Section, Judgment of June 1, 2010, Gutiérrez Suárez v. Spain; Second Section, Judgment of July 17, 2008, Riolo v. Italy; Grand Chamber, Judgment of December 17, 2004, Cumpănă and Mazăre v. Romania; Grand Chamber, Judgment of May 20, 1999, Bladet Tromsø and Stensaas v. Norway), has recognized freedom of expression as a presupposition and keystone of a democratic society as well as a guarantee against interferences by public authority (ECtHR, Third Section, Judgment of June 17, 2008, Meltex Ltd and Mesrop Movesseyan v. Armenia).

As is known, the Strasbourg Court ascertains whether state "interference" is provided for by law, pursues one of the legitimate aims indicated by the aforementioned Article 10, paragraph 2, ECHR, and constitutes a "necessary" measure to be adopted "in a democratic society."

On the premise that limitations on freedom of expression are of "strict interpretation" (ECtHR, Grand Chamber, Judgment of May 6, 2003, Perna v. Italy; Plenary, Judgment of April 26, 1979, *The Sunday Times v. the United Kingdom*), since it is strictly connected to the enjoyment and exercise of other conventional rights, balancing with other protected goods is as a rule necessary, which, with reference to the crime of defamation, predominantly involves the protection of reputation and private life pursuant to Article 8 ECHR (ECtHR, First Section, Judgment of November 15, 2007, *Pfeifer v. Austria*, paragraph 35; Second Section, Judgment of March 30, 2004, *Radio France and Others v. France*, paragraph 31).

The propensity of the ECtHR to interpret the scope of application of Article 10 of the Convention in a liberal key and for the protection of free expression and the press is therefore settled, the conventional guarantee being aimed at the protection not only of the "substance" of ideas and information, but also of the "style" with which they are presented, which may tolerate the "recourse to a certain degree of exaggeration, or even provocation" (thus the cited Judgment Perna v. Italy, which excluded the violation of Article 10 ECHR in relation to a case in which only the penalty of a fine had been applied).

In this context, the Strasbourg Court, starting from the paradigmatic case Cumpănă and Mazăre v. Romania of 2004, has affirmed that the imposition of a custodial sentence—even if suspended—for an offense connected to the use of communication media can be compatible with the freedom of expression of journalists guaranteed by Article 10 ECHR only in exceptional circumstances, notably where other conventional rights have been seriously impaired, as for example happens in the hypothesis of hate speech or incitement to violence (ECtHR, Cumpănă and Mazăre Judgment, paragraph 115; Second Section, Judgment of November 16, 2004, Norwood v. the United Kingdom, regarding Islamophobic speech; First Section, Judgment of February 20, 2007, Pavel Ivanov v. Russia, regarding antisemitic speech). Outside of these hypotheses, in fact, the very provision of a custodial penalty has a deterrent effect ("chilling effect") towards the journalist exercising freedom of expression guaranteed by Article 10 ECHR.

7.5.– As regards the case law of legitimacy, mention should be made of the ruling by which the Court of Cassation, in relation to a case that prompted extensive public debates, affirmed the "conventional" legitimacy, in relation to Article 10 ECHR, of the imposition of the custodial penalty in the hypothesis of conviction for the crime of press defamation committed by publishing false news, in which case one of the "exceptional hypotheses" identified by the case law of the ECtHR materialized (Court of Cassation, Fifth Criminal Section, Judgment of September 26-October 23, 2012, no. 41249).

Immediately thereafter, the ECtHR reiterated the incompatibility between Article 10 ECHR and the application of the custodial penalty, even if suspended, to the journalist held responsible for omitted control pursuant to Article 57 of the Penal Code, holding that the case was not "characterized by any exceptional circumstance justifying recourse to such a severe sanction" (case Belpietro).

Into this interpretive groove fits the judgment by which the Court of Cassation affirmed that, in matters of press defamation, the imposition of the custodial penalty, even if conditionally suspended, requires the occurrence of exceptional circumstances, annulling with remand the decision by which the custodial sanction had been imposed in consideration both of the serious defamatory scope of the fact, committed through the publication of false news in a newspaper article, and of the personality of the offended parties (career military personnel accused of having committed theft to the detriment of a colleague: Court of Cassation, Fifth Criminal Section, Judgment of December 11, 2013-March 13, 2014, no. 12203).

To different specific conclusions (yet always within the general logic of the necessary occurrence of exceptional hypotheses or circumstances) came that case law which reiterated the legitimacy, in relation to Article 10 ECHR, of the imposition of the custodial penalty in hypotheses of conviction for the crime of press defamation committed by publishing news not corresponding to truth in the full awareness by the journalist of such falsity, in which case precisely one of the "exceptional hypotheses" identified by the ECtHR case law materializes (Court of Cassation, Fifth Criminal Section, Judgment of November 23, 2016-February 10, 2017, no. 6333; Fifth Criminal Section, Judgment of January 26-September 28, 2015, no. 39195 which recalls various precedents of the ECtHR). In this sense, it was highlighted that such conduct remains completely extraneous to the scope of application of Article 10 ECHR, regardless of the diffusive potential of the offense inflicted on the reputation of the victim, inasmuch as the very case law of the ECtHR reiterates how the pursuit of historical truth is an integral part of freedom of expression, and "has nothing to do with the gratuitous willingness—unbound from the public's right to information on real facts—to criminalize a person" (Cass., no. 39195 of 2015).

7.6.– The Strasbourg Court then intervened once again, with a decision in which it reiterated that the imposition of a custodial penalty, even if suspended, for an offense connected to the use of communication means can be compatible with the freedom of expression of journalists guaranteed by Article 10 ECHR only in exceptional circumstances, notably where other conventional rights have been seriously impaired, as for example happens in the hypothesis of hate speech or incitement to violence (ECtHR, First Section, Judgment of March 7, 2019, Sallusti v. Italy).

Well then: even following this umpteenth ruling of the ECtHR, questions of constitutional legitimacy were raised, by two distinct orders (registered under numbers 140 and 149 ord. reg. of 2019), against Articles 595, third paragraph, of the Penal Code and 13 of Law No. 47 of 1948 in relation to Article 117, first paragraph, of the Constitution, in relation to Article 10 ECHR, as interpreted by the same Court.

7.7.– We thus come to constitutional case law. By Order No. 132 of 2020, this Court, adopting the same decisional scheme already followed, for another purpose, by Order No. 207 of 2018 and taking into account the pendency in Parliament of various bills regarding the revision of the discipline of press defamation, postponed by about a year the treatment at public hearing of the questions of constitutional legitimacy indicated above. It therefore delegated to the legislature "the responsibility of identifying overall sentencing strategies capable, on the one hand, of avoiding any undue intimidation of journalistic activity" and, on the other, "of ensuring adequate protection of individual reputation," designing "a balanced system of protection of the rights at stake," which contemplates not only recourse to non-custodial penal sanctions and civil and restorative remedies, but also "effective disciplinary measures," reserving the custodial penalty only to conduct that "assumes connotations of exceptional gravity from an objective and subjective point of view, among which notably those in which defamation implies an incitement to violence or conveys messages of hatred are inscribed."

In recalling the jurisprudential elaboration of the ECtHR, this Court underlined that the balance between freedom of expression of thought and protection of reputation "cannot [...] be thought of as fixed and immutable, being subject to necessary adjustments, all the more in light of the rapid evolution of technology and communication means that has occurred in recent decades." "Comprehensive rethinking" of the balance, which has now become inadequate also in light—precisely—of the copious case law of the ECtHR, is therefore "necessary and urgent," requiring a remodeling capable of "combining the requirements of guaranteeing journalistic freedom [...] with the equally pressing reasons for effective protection of the individual reputation of the victims of any abuses," exposed to greater risks than in the past, considering the "effects of very rapid and lasting amplification of defamatory charges determined by social networks and internet search engines."

It is precisely by recalling this decision of this Court that, in matters of press defamation, the case law of legitimacy affirmed the power of the trial judge to ascertain the occurrence of exceptional gravity of defamatory conduct attributing a determined fact, implying incitement to violence or the transmission of messages of hatred; exceptional gravity which, according to a constitutionally and conventionally oriented interpretation, alone justifies the application of the custodial penalty (Court of Cassation, Fifth Criminal Section, Judgment of July 9-September 22, 2020, no. 26509). Furthermore, recalling the case law of the Strasbourg Court on the deterrent effect of the custodial penalty also towards subjects not exercising the journalistic profession, the Court of Cassation then affirmed that the imposition of a custodial penalty, even if suspended, for the crime of defamation connected to the use of communication means (in casu: of the internet), even if not committed within the scope of journalistic activity, can be compatible only in exceptional circumstances with the guarantees of freedom of expression guaranteed by Article 10 ECHR (Court of Cassation, Fifth Criminal Section, Judgment of February 17-April 14, 2021, no. 13993).

With Judgment No. 150 of 2021, this Court—while the inertia of the legislature persisted—intervened once again, declaring the constitutional illegitimacy of Article 13 of Law No. 47 of 1948, insofar as it provided (and provides) for a custodial penalty for defamation committed by means of the press and consisting in the attribution of a determined fact.

In this regard, it was noted that, in relation to the aggravating circumstance contemplated by the challenged provision, the two penalties—custodial and pecuniary—are provided for cumulatively: "[p]recisely the inescapable nature of the application of the custodial penalty, in all hypotheses in which mitigating circumstances do not subsist—or cannot be considered at least equivalent—makes the challenged provision incompatible with the right to manifest one's thoughts, recognized both by Article 21 of the Constitution and by Article 10 ECHR" (Judgment No. 150 of 2021, point 4.2. of the Considerations in law, which consequently extended the declaration of constitutional illegitimacy also to Article 30, paragraph 4, of Law No. 6, 1990, bearing "Regulation of the public and private radio and television system," concerning defamation committed by radio and television means and with the attribution of a determined fact).

The imposition of the custodial sanction has now become incompatible with the need "not to deter, through the fear of a penalty depriving personal liberty, journalists in general from exercising their crucial function of scrutiny over the actions of public powers." A requirement, this, upon which the ECtHR has particularly insisted in its copious case law, expressly shared in the recently recalled judgment.

Although the custodial sanction cannot always be considered constitutionally illegitimate in the most serious cases of defamation, its necessary imposition, provided for by the provision challenged at the time in all hypotheses contemplated therein—which embraced, in practice, almost all defamation committed by means of the press, periodical and otherwise—led to outcomes incompatible with the requirements of protecting freedom of expression of thought, in particular with that specific declination of it constituted by freedom of the press, already defined as the "cornerstone of the democratic order" by Judgment No. 84 of 1969.

In the recalled ruling No. 150 of 2021, this Court instead declared unfounded the question of constitutional legitimacy concerning Article 595, third paragraph, of the Penal Code, which configures an aggravating circumstance of the crime of defamation, integrated whenever the offense is committed by means of the press or with any other means of publicity, or in a public instrument, in relation to which the alternative penalty of imprisonment from six months to three years or a fine of not less than 516 euros is provided: "[t]he provision, this time only alternatively, of the custodial penalty by the challenged norm cannot be considered in itself in contrast with the freedom of expression of thought, protected by Articles 21 of the Constitution and 10 ECHR."

Recalling what was already affirmed in Order No. 132 of 2020, it was highlighted that "if it is true that freedom of expression—in particular *sub specie* of the right to report and criticize exercised by journalists—constitutes the cornerstone of any democratic order, it is no less true that individual reputation is equally an inviolable right, closely linked to the very dignity of the person. Illegitimate attacks on such right carried out through the press, or through the other means of publicity to which Article 595, third paragraph, of the Penal Code refers—radio, television, online journalistic mastheads and other internet sites, social media, and so on—can greatly affect the private, family, social, professional, political life of the victims. And such damages are susceptible, today, of being enormously amplified precisely by modern communication means, which make all defamatory charges associated with the victim's name easily retrievable by anyone, even after many years. These prejudices must be prevented by the system with suitable, necessary, and proportioned instruments, within the framework of an indispensable balancing with the opposing requirements of protecting freedom of expression of thought, and the right to report and criticize in particular. Among these instruments, the custodial sanction cannot be absolutely excluded, provided that its application is surrounded by precautions suitable for shielding the risk of undue intimidation exerted on those who carry out the journalistic profession. It must in fact be held that the infliction of a custodial penalty in the case of defamation committed by means of the press or other means of publicity is not in itself incompatible with the reasons for protecting freedom of expression of thought in cases where defamation is characterized by its exceptional gravity" (Judgment No. 150 of 2021, point 6.2. of the Considerations in law).

It is precisely by leveraging the profile of identifying hypotheses of "exceptional gravity" that this Court proposed an "extensive" interpretation (not limited—that is—to hate speech or incitement to violence), novel for conventional case law, but undoubtedly more adherent to domestic interpretive canons developed also on the basis of identifying parameters of the gravity of crimes by Article 133 of the Penal Code.

It has been recalled, in fact, that the ECtHR considers similar exceptional hypotheses integrated, in particular, with reference to hate speech and incitement to violence, which in the concrete case may also characterize defamatory contents. Nonetheless, "equally exceptional cases, such as to justify the infliction of custodial sanctions, could for example also be represented by disinformation campaigns conducted through the press, the internet, or social media, characterized by the dissemination of charges gravely harmful to the victim's reputation, and carried out with the awareness by their authors of the—objective and demonstrable—falsity of the charges themselves. Whoever engages in such conduct—whether or not exercising the journalistic profession—certainly does not perform the function of 'watchdog' of democracy, which is implemented paradigmatically through the research and publication of 'uncomfortable' truths; but, to the contrary, creates a danger for democracy, fighting the adversary through falsehood, used as an instrument to discredit his person in the eyes of public opinion. With foreseeable distorting consequences also with respect to the outcomes of free electoral competitions themselves" (Judgment No. 150 of 2021, still point 6.2.).

If circumscribed to cases like those just hypothesized, the abstract provision and concrete infliction of custodial sanctions cannot reasonably produce effects of undue compression of freedom of expression of thought or intimidation of the journalistic profession, compromising its essential function for a democratic society. Outside of those exceptional cases, moreover very far from the *ethos* of the journalistic profession, the prospect of prison must instead be excluded for the journalist, as for anyone else who has expressed their opinion through the press or other means reaching the public sphere, leaving open only the possibility of penalties other than imprisonment as well as civil or disciplinary remedies and sanctions, in all ordinary hypotheses in which conduct harmful to another's reputation has exceeded the limits of the legitimate exercise of the right to report or criticize.

In conclusion on this point, it must finally be noted that the orientation matured with the ruling of this Court now recalled found translation in subsequent case law of legitimacy (in particular, Court of Cassation, Fifth Criminal Section, Judgment of June 25-July 21, 2021, no. 28340).

8.– Having specified this much regarding the regulatory and jurisprudential context, the projected questions of constitutional legitimacy can now be addressed.

They are well-founded.

8.1.– The decisive assessment that this Court is called upon to make concerns the effectively "necessary" nature or otherwise of the custodial penalty for the crime of "military" defamation.

As has been seen, this theme has had broad development in the case law of the ECtHR, which dealt first with the deterrent effect that the custodial penalty can determine on the freedom of expression of journalists and in general of those who use communication means.

The deterrent effect, nonetheless, has also been appreciated in conventional venue with reference to the exercise of a lawyer's right to criticize the actions of a magistrate (ECtHR, Grand Chamber, Judgment of April 23, 2015, Morice v. France), affirming that, if on the one hand the legitimate exercise of the right to criticize cannot extend so far as to undermine the image of impartiality of the judicial system and thus the trust placed in it by citizens, on the other hand the very fact that the judiciary is a fundamental institution of the State means that the right to criticize it corresponds to a public interest, while more rigorous limits apply than ordinary ones and on condition that the criticism does not translate into "gravely damaging attacks that are essentially unfounded" (ibid., paragraph 131).

Similarly, the ECtHR perceived a violation of Article 10 ECHR in relation to the conviction, respectively for defamation and for contempt, suffered by two lawyers for offensive statements in defensive briefs (ECtHR, Third Section, Judgment of October 8, 2019, L. P. and Carvalho v. Portugal), affirming that the sanctions inflicted, although of modest amount, can determine a deterrent effect on the freedom of the legal profession.

The Strasbourg Court has also (and more specifically, for what concerns us here) affirmed that the freedom of expression recognized by Article 10 ECHR "does not stop at the gates of army barracks" (ECtHR, judgment rendered in the case Grigoriades v. Greece, paragraph 45: "Article 10 does not stop at the gates of army barracks") and applies to military personnel, without prejudice to the possibility of imposing limits for the protection of national security and for the defense of public order (ECtHR, judgment rendered in the case Ayuso Torres v. Spain, paragraph 47: "the State can impose restrictions on the right to freedom of expression accorded to military personnel pursuing legitimate aims such as national security and the defence of public order").

In turn, Order No. 132 of 2020 of this Court highlighted the need for a reconsideration of the balance between freedom of expression of thought and protection of reputation which also takes into account "the rapid evolution of technology and communication means that has occurred in recent decades," and the "effects of very rapid and lasting amplification of defamatory charges determined by social networks and internet search engines." In this way, the opportunity for a rethinking of the necessity of the custodial penalty was not circumscribed solely to cases of exercising journalistic activity, since social networks are obviously usable by any person as well.

In the sense described above, case law of legitimacy has also ruled, as already illustrated (supra, points 7.5. and 7.6.) (Court of Cassation, Judgment no. 13993 of 2021; analogously, recently, Court of Cassation, Fifth Criminal Section, Judgment of May 21-August 27, 2025, no. 29840).

8.2.– Now, in the face of the now settled affirmation that the provision of a custodial penalty determines a deterrent effect, which compromises the full deployment of the free manifestation of thought, its inevitability, which follows from the application of the challenged provision, finds no justification in the characteristic features of military defamation. In the promoting act, indeed, Article 3 of the Constitution is not invoked as a parameter and—therefore—no disparity of treatment between "military" defamation and "common" defamation is complained of. The theme of the respective characteristics of these two offenses and their comparison, nonetheless, remains decisive in any case, since the necessity of the (solely) custodial penalty could well emerge from the comparison of the offenses themselves and from the possible ascertainment of peculiar characteristics of the "military" one, such as to require a particularly more afflictive sentencing treatment. This comparison, however, does not support such a conclusion.

Military defamation appears indeed substantially superimposable on common defamation, so much so that legal scholarship has spoken of a "replicating" criminal offense. In fact, both offenses are calibrated on the same objective typicality, contemplating the same description of conduct—the offense to reputation—and, beyond their systematic placement in the two penal codes (common and military), are placed to safeguard the same legal good (honor, of which reputation represents the social projection).

The different treatment of common defamation and military defamation must in any case be appreciated in light of the interpretive orientation previously matured in the case law of this Court.

In this regard, Judgment No. 273 of 2009 is primarily relevant, in which it was stated that "the two provisions compared, military defamation (Article 227 of the military penal code of peacetime) and 'common' defamation (Article 595 of the Penal Code), present full equivalence in terms of both typical conduct and legal objectivity of the crime. Military defamation stands in a relationship of specialty with the corresponding crime provided for by the penal code, being distinguished solely by the quality of the active subject and of the injured party, both of whom must be military personnel, while the textual description of the basic offense of the two incriminatory norms remains identical, namely the offense to another's reputation in communication with multiple persons [...]."

The problem of differentiation or uniformity in the treatment of "military" penal offenses and "common" ones has however been thoroughly probed above all by Judgment No. 244 of 2022. Being a very recent precedent, it is not necessary here to repeat its articulated motivational path, and it suffices to recall the conclusions reached therein. In particular, this Court affirmed that, "in principle, a difference in sentencing treatment between military crimes and corresponding common crimes violates Article 3 of the Constitution when it does not appear supported by any reasonable justification, given the substantial identity of the punished conduct, the subjective element, and the protected legal good. Emblematic in this sense are the judgments censoring differences in the discipline of 'common' and 'military' embezzlement: given that the active subject in both crimes has the availability or possession of money or things of the public administration for reasons of office, the act of appropriating such money or things presents homogeneous disvalue both in the hypothesis in which the subject is a public official or a 'civilian' person charged with a public service, or a military person." These are conditions that present themselves, for what concerns us here, also in the offenses of "military" defamation and "common" defamation, whose different treatment does not appear justified by a substantial difference in the disvalue of the sanctioned conduct, which in both cases strike the goods of honor and dignity, with equal offensive potential.

Always in the recalled ruling, nonetheless, this Court specified that "[d]ifferences in sentencing treatment between common crimes and corresponding military crimes do not instead run counter to the principle of equality insofar as they are justifiable by reason of the objective diversity of interests protected by the provisions, common and military, which are compared from time to time, or of the particular relationship binding the acting subject to the protected good. Emblematic here are the incriminatory norms concerning conduct carried out by a military person towards other military personnel: the specific criminal disvalue of such behavior does not depend indeed on its intrinsic immorality, nor on the mere violation of the bond of trust that the system places on the respect of discipline by military personnel; but rather on its objective dysfunctionality with respect to the interest in maintaining basic requirements of cohesion within the Armed Forces, in turn instrumental to the effective performance of the very delicate functions entrusted to them, and consequently with respect to their efficiency and operational capacity, as well as on the special offensive dimension of the conduct towards the fundamental rights of individual military personnel, particularly exposed to phenomena of 'hazing' or sexual discrimination (Judgment No. 215 of 2017)." It is a matter, therefore, of understanding whether ascribing the same sentencing treatment of the offense of "common" defamation to the offense of defamation committed by a military person to the detriment of another military person or a military institution is capable of compromising the aforementioned "basic requirements of cohesion within the Armed Forces." The answer must be negative.

There is no doubt that defamatory statements internal to the military system are such as to cause prejudice to its orderly functioning. Nonetheless, exactly the same thing happens in the general system as well, so that the diversity of the sentencing regime does not appear justified. Nor, in this case, does the hypothesis of the abuse of hierarchical or power positions proper to military coexistence that characterizes the examples given by Judgment No. 244 of 2022 ("hazing" and sexual discrimination) apply. While in these latter offenses the "basic requirements of cohesion" leap to the foreground, justifying the diversity of sentencing apparatuses, in the one occupying us they remain only in the background and could be adequately satisfied by the common sentencing treatment. A further affirmation of the case law of this Court applies here: "Not only facts constituting military penal offenses but all penal offenses offend, before the individual and different goods (specific legal object), the entire state community. The objects specifically protected by substantive peacetime military penal law and, therefore, the objects to guarantee which peacetime military penal procedure is provided, cannot, by themselves, in any case, be considered 'superior' and 'more important' than all other constitutionally or ordinarily protected goods." So much so that "[a]lready [...] since the advent of the republican Constitution, peacetime substantive and procedural military penal law not only can no longer be considered 'detached' from the general guarantee system of the State but is no longer to be exalted as placed to protect goods and values of such particular importance as to surpass, in the hierarchy of guaranteed values, 'all' others." (Judgment No. 278 of 1987).

Consider, however, that the custodial penalty can well be imposed in the "exceptional" circumstances identified in case law and that in the case of military defamation they can present themselves with greater frequency than occurs in the general system. It will therefore be up to case law to carefully consider the occurrence of said circumstances, in order to ensure adequate protection for the goods compromised by defamatory expressions, even while balancing with the requirement of adequate protection of the free manifestation of thought.

Not the possibility of inflicting even just a pecuniary sanction, indeed, but the absence of any sanction, would compromise the goods protected by the provision of the crime of defamation. The declaration of constitutional illegitimacy of Article 227 of the military penal code of peacetime, however, does not determine this consequence.

9.– It must be excluded that an "additive" acceptance judgment can be pronounced in these proceedings which, as an alternative to the custodial one, introduces a specific pecuniary penalty, taking the common defamation offense referred to in Article 595 of the Penal Code as an internal normative paradigm suitable for effecting the *reductio ad legitimitatem*.

Such an additive ruling should declare the constitutional illegitimacy of Article 227 of the military penal code of peacetime to the extent that it does not provide, as an alternative to the custodial penalty, the pecuniary penalty of the fine (*multa*) for hypotheses of non-extraordinary gravity. The measure of the pecuniary penalty, in turn, should be borrowed from Article 595 of the Penal Code, which provides for the basic hypothesis a fine of up to 1,032.00 euros (first paragraph) and for the aggravated hypothesis by the attribution of a determined fact a fine of up to 2,065.00 euros (second paragraph).

However, whereas Article 227 of the military penal code of peacetime contemplates in the second paragraph both the aggravating circumstance of the attribution of a determined fact and the aggravating circumstance of the offense committed by means of the press or with any other means of publicity or in a public instrument, Article 595 of the Penal Code contemplates such aggravating circumstances in two distinct sub-offenses, in the second and third paragraphs, providing different statutory limits (both of the custodial penalty and of the pecuniary penalty).

It is for this reason that the State Attorney's Office excepted, by brief, the inadmissibility of the questions, highlighting, among the contraindications of a translation of the common pecuniary penalty into the military offense, the "imperfect symmetry between the types of offenses regulated by the respective incriminatory provisions" and the need, in case of acceptance, to evaluate "whether to establish a single measure valid for all the aggravated hypotheses considered therein or whether to sever the unity of their discipline solely for the purposes of the pecuniary response as happens for common defamation."

The profile of the sentencing asymmetry of the two offenses, implying a politico-criminal evaluation not permitted to this Court, obstructs a declaration of constitutional illegitimacy having the structure just described.

10.– A constitutionally adequate solution not implying markedly discretionary options reserved to the legislature is the simple declaration of constitutional illegitimacy of Article 227 of the military penal code of peacetime. To it, in fact, follows the attraction of "military" defamation facts within the scope of the common discipline referred to in Article 595 of the Penal Code.

It must be observed that such a solution, besides extending the effects of the review on the proportionality of the penalty also to military penal law and tracing a reduction of military jurisdiction and a correlative expansion of ordinary jurisdiction, with an effect of delimiting the "special judge," in the constitutional perspective of *favor* for the ordinary judge, is by no means unknown, from a comparative perspective, to other systems (think of France, Germany, the United Kingdom).

11.– The expansion of the discipline concerning "common" defamation so as to cover "military" defamation is moreover consistent with the constitutional position of the Armed Forces. The fabric designed by the Constitution is perfectly visible and has also been brought to light, in recent times, by Judgment No. 120 of 2018 of this Court, in the matter of the exercise of trade union freedom in the military system, which retraced constitutional case law on the relationship between democracy and the military system. Thus, in that ruling:

a) the passage of Judgment No. 126 of 1985 was textually reported in which "the requirement, which emanates from the Constitution, that the democratic character of the organization of the Armed Forces be implemented to the maximum extent compatible with the pursuit by them of their institutional ends" was already affirmed;

b) it was recalled that Judgment No. 278 of 1987 had "clarified that the republican Constitution has radically overcome the institutionalist logic of the military system and has brought the latter back within the scope of the general state system, particularly respectful and guarantor of the substantive and procedural rights of all citizens, military or not";

c) "the principles recalled in Judgment No. 449 of 1999" were recalled, where it was affirmed that Article 52, third paragraph, of the Constitution "speaks of the 'organization of the Armed Forces,' not to indicate its (inadmissible) extraneousness to the general system of the State, but to summarize in that formula the absolute specialty of the function."

All these affirmations, which have marked the long path of the case law of this Court, are rooted in the (clearly visible, it is well to reiterate) constitutional design, which has operated a very close connection between the military system and the general system, ensuring that even the former, despite its peculiarity, became imbued with the principles of democracy, freedom, dignity, and protection of the person that—in frontal opposition to the fascist experience—characterize the latter. Suffice it to think of the fact that: i) the repudiation of war "as an instrument of offense against the freedom of other peoples and as a means for the settlement of international disputes" is entrusted to "Italy" (Article 11 of the Constitution), almost as if to mark that this is a distinctive trait of the entire national community; ii) "associations [...] which pursue [...] political aims through organizations of a military character" are prohibited (Article 18, second paragraph, of the Constitution) also because military organization can only be general and serve the interests of the Nation; iii) command of the armed forces is entrusted to the President of the Republic (Article 87, ninth paragraph, of the Constitution) also and above all in his quality (in addition to that of Head of State) of representative of national unity (Article 87, first paragraph, of the Constitution); iv) enrollment in political parties may be prohibited to "career military personnel on active service" (Article 98, third paragraph, of the Constitution) precisely because what is a "part" can be judged irreconcilable with those at the service of the "whole." Peculiarity, therefore, implies no "separateness" of the military system from the general one and—therefore—from its principles.

In addition to the provisions just recalled, this conclusion naturally finds its foundation above all in Article 52 of the Constitution. Attention, indeed, normally falls on its third paragraph, where it is established that "The organization of the Armed Forces is shaped by the democratic spirit of the Republic," thus marking in the clearest letters the connection of the military system with the general system. However, the first ("The defense of the Fatherland is a sacred duty of the citizen") and the second paragraph ("Military service is obligatory within the limits and ways established by law. Its fulfillment does not prejudice the citizen's employment position, nor the exercise of political rights") are also of decisive importance.

The former refers to any form of defense of the Fatherland, but evidently includes its most institutionalized form, i.e., the defense ensured by the Armed Forces. In this way the Constitution, in operating the connection between the Armed Forces and the defense of the Fatherland, highlights, with a single, penetrating formula, both the subjection of the Armed Forces to the requirements of defense of the Fatherland, and—precisely for this reason—the merit that characterizes them, highlighting, once again, the connection between their system and the general one, of which it shares the principles.

12.– It results, from the foregoing, that Article 227 of the military penal code of peacetime imposes the infliction of a custodial penalty which is not always necessary, thus departing from the general provisions of Article 595 of the Penal Code, where the custodial penalty is contemplated only as an alternative to the pecuniary one and—rightly as deducible from the recalled jurisprudential elaboration—is admitted only in cases where this does not determine an illegitimate deterrent effect to the detriment of the free manifestation of thought, in the absence of constitutional goods in need of specific protection also through the custodial sanction. Nor can it be held that the treatment different from that established by the general norm finds justification in the peculiarities of "military" defamation, which instead—as has been seen—is largely superimposable on "common" defamation.

Article 227, first and second paragraphs, of the military penal code of peacetime must therefore be declared constitutionally illegitimate, with the consequent re-expansion of common penal discipline.

13.– For analogous reasons, pursuant to Article 27 of Law No. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), the constitutional illegitimacy of Article 227, third paragraph, of the military penal code of peacetime—which provides that "[i]f the offense is committed against a military body, or against an administrative or judicial military entity, the penalties are increased"—must be declared as a consequence.

on these grounds

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Article 227, first and second paragraphs, of the Military Penal Code of Peacetime;

2) declares the constitutional illegitimacy, as a consequence, pursuant to Article 27 of Law No. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), of Article 227, third paragraph, of the Military Penal Code of Peacetime.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on June 10, 2026.

Signed:

Giovanni AMOROSO, President

Massimo LUCIANI, Rapporteur

Roberto MILANA, Director of the Chancery

Deposited in the Chancery on November 3, 2026

The anonymized version conforms, in its text, to the original