JUDGMENT NO. 186
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 pronounced the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 131-bis, third paragraph, of the Criminal Code, brought by the Ordinary Court of Ancona, Criminal Section, sitting as a single judge, by order of January 22, 2026, by the Ordinary Court of Brescia, Third Criminal and Review Section, sitting as a single judge, by order of February 23, 2026, and by the Court of Appeal of Florence, First Criminal Section, by order of March 12, 2026, registered respectively under numbers 38, 45, and 57 of the 2026 register of orders and published in the Official Journal of the Republic numbers 11, 12, and 16, 1st special series, of the year 2026.
Having heard in chambers on October 5, 2026, the Judge Rapporteur Roberto Nicola Cassinelli;
Deliberated in chambers on October 5, 2026.
RITENUTO IN FATTO
1.– By order of January 22, 2026, registered under no. 38 of the 2026 register of orders, the Ordinary Court of Ancona, Criminal Section, sitting as a single judge, raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy regarding Article 131-bis, third paragraph, of the Criminal Code (Exclusion of punishability for particular tenuity of the act), to the extent that it establishes that the offense cannot be deemed to be of particular tenuity when proceedings are brought for the crime provided for in Article 341-bis of the Criminal Code (Contempt of a public official), where the act is committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their duties.
1.1.– The referring judge states at the outset that they must adjudicate the conduct of A. S., charged with the crime of contempt of a public official because, on May 27, 2021, during an inspection regarding compliance with anti-COVID 2019 regulations conducted on a train, in the presence of other persons occupying the compartment, he directed offensive expressions towards a non-commissioned officer of the Guardia di Finanza who was issuing him a fine for failure to wear a protective face mask.
Having established the existence of the acts forming the subject of the charge, the judge *a quo* nonetheless points out the particular tenuity of the offense, given that the defendant—over seventy years of age, homeless, and in need of social assistance—had acted with sudden intent (*dolo d’impeto*), but had promptly calmed down and, a few days later, had sent a handwritten letter of apology to the public security officer; furthermore, the defendant had only one prior conviction for an offense of the same nature.
1.2.– This having been stated regarding the relevance of the questions, the referring judge further submits, concerning the non-manifest lack of foundation, that the inapplicability of the exonerating circumstance to the crime of contempt of a public official would violate the principle of reasonableness pursuant to Article 3 of the Constitution under the profile of comparison with the crime referred to in Article 338 of the Criminal Code (Violence or threat against a political, administrative, or judicial body, or its individual members)—to which the exonerating circumstance applies, as it is punished with a minimum penalty of no more than two years—and with the crimes referred to in Articles 336 (Violence or threat against a public official) and 337 of the Criminal Code (Resistance to a public official), to which, where committed to the detriment of officers or agents of public security or judicial police, the exonerating circumstance is applicable pursuant to Judgment No. 172 of 2025 of this Court, which deemed manifestly unreasonable the provision rendering them inexcusable precisely because the exonerating circumstance is instead applicable to the crime referred to in Article 338 of the Criminal Code, despite being homogeneous with them yet more serious.
The order invokes the argumentative framework of that ruling, asserting its applicability *mutatis mutandis* to the present case; and this because, with the criminal offenses placed in comparison, the criminal code has «outlined an ascending climax of gravity in conduct aimed at disrupting (or even preventing) the activity of public officials, having at its base the crime of contempt and at its peak that of violence or threat against a political, administrative, or judicial body or its members, passing through, as intermediate terms, violence or threat and resistance to a public official».
Therefore, the legislative choice to maintain the inexcusability of contempt in the face of the applicability of the exonerating circumstance to the aforementioned more serious criminal hypotheses would be unreasonable; and from such normative dissonance there would also derive a *vulnus* to the re-educative purpose of the penalty, pursuant to Article 27, third paragraph, of the Constitution, since the convicted person would ultimately fail to perceive the sanction as "just,” considering that the perpetrators of homogeneous and more serious crimes may instead obtain the application of the ground of non-punishability for particular tenuity of the act.
2.– By order of February 23, 2026, registered under no. 45 of the 2026 register of orders, the Ordinary Court of Brescia, Third Criminal and Review Section, sitting as a single judge, raised a question of constitutional legitimacy regarding the same provision, with reference to Article 3 of the Constitution.
The main proceedings concern the charge of contempt of a public official brought against S. B., who, while inside a supermarket in the company of a person stopped by the Carabinieri in the act of walking away after the theft of certain items, directed offensive expressions towards a military officer of the Arma, in the presence of other customers.
According to the referring judge, such conduct, capable of constituting the charged offense, was characterized by particular tenuity, as it was supported by sudden intent and consisted of insulting expressions of modest offensive scope, uttered in the presence of few persons; furthermore, the defendant has no prior convictions for offenses of the same nature.
2.1.– This second order also alleges a conflict with the principle of reasonableness.
Invoking the aforementioned Judgment No. 172 of 2025 of this Court, the referring judge highlights the outcome of the differing treatment, regarding the application of the exonerating circumstance, between the crime of contempt of a public official and those under Articles 336 and 337 of the Criminal Code; and this notwithstanding the fact that the latter are homogeneous with the former—sharing the protected legal interest, the objective element of violent conduct, and the purpose thereof to prevent the performance of an official act by the public official—and are more serious, being characterized by a rising gradation in the intensity of the offense.
3.– By order of March 12, 2026, registered under no. 57 of the 2026 register of orders, the Court of Appeal of Florence, First Criminal Section, raised an identical question of constitutional legitimacy.
The bench states at the outset that it must rule on the appeal brought by the public prosecutor against the judgment by which the Ordinary Court of Pistoia acquitted G. P. of the crime referred to in Article 341-bis of the Criminal Code, deeming applicable the exonerating circumstance referred to in Article 131-bis of the same code.
Specifically, the defendant had directed insulting expressions towards two State Police officers who had intervened to identify him after catching him arguing with another person at a public bus stop, in the presence of several bystanders; the Court had recognized the particular tenuity of the offense in consideration of the fact that the defendant had subsequently apologized to the offended officers, and the public prosecutor's appeal was based on the literal wording of the challenged provision, which expressly excludes the applicability of the exonerating circumstance to the crime of contempt when committed to the detriment of a public security agent in the exercise of their duties.
3.1.– In terms corresponding to those already highlighted in the first two orders, the referring judge invokes the precedent of this Court, thereby pointing out that the ground of non-punishability is now applicable to more serious crimes to the detriment of a public agent and, conversely, excluded for a less serious crime.
CONSIDERATO IN DIRITTO
4.– By three orders of similar content, registered respectively under numbers 38, 45, and 57 of the 2026 register of orders, the Court of Ancona, Criminal Section, sitting as a single judge, the Court of Brescia, Third Criminal and Review Section, sitting as a single judge, and the Court of Appeal of Florence, First Criminal Section, have raised questions of constitutional legitimacy regarding Article 131-bis, third paragraph, of the Criminal Code, to the extent that it establishes that the offense cannot be deemed to be of particular tenuity when proceedings are brought for the crime provided for in Article 341-bis of the Criminal Code and the act is committed against an officer or agent of public security or an officer or agent of judicial police in the exercise of their duties.
The referral orders allege the incompatibility of the challenged provision with the principle of reasonableness pursuant to Article 3 of the Constitution, highlighting that, following Judgment No. 172 of 2025 of this Court, the ground of non-punishability for particular tenuity of the act is now applicable to the crimes referred to in Articles 336 and 337 of the Criminal Code, where committed to the detriment of officers or agents of public security or judicial police, even though such crimes are homogeneous with the crime of contempt and indeed more serious than it, thereby configuring an irrational disparity of treatment.
The Court of Ancona, furthermore, extends the comparison to the crime referred to in Article 338 of the Criminal Code (Violence or threat against a political, administrative, or judicial body, or its individual members), asserting that it is a crime homogeneous to that of contempt and characterized by greater gravity, and deduces from the manifest unreasonableness of the challenged provision also a *vulnus* to the re-educative function of the penalty pursuant to Article 27, third paragraph, of the Constitution.
5.– The three proceedings must be joined, as they have as their object the same provision, challenged on the basis of partially overlapping arguments.
6.– The questions are not well-founded.
6.1.– The referral orders build upon the argumentative framework of Judgment No. 172 of 2025 of this Court, by which the challenged provision was declared constitutionally illegitimate to the extent that it establishes that the offense cannot be deemed to be of particular tenuity when proceedings are brought for the crimes provided for in Articles 336 and 337 of the Criminal Code, where committed to the detriment of an officer or agent of public security or judicial police.
In that ruling, specifically, premising that the legislature's choices regarding the scope of application of grounds of non-punishability are subject to judicial review only for manifest unreasonableness (Judgment No. 30 of 2021), such a flaw was identified in the differing treatment—regarding the applicability of the exonerating circumstance for particular tenuity of the act—that the provision of Article 131-bis of the Criminal Code reserves for the crime referred to in Article 338 of the Criminal Code, committed against a collegiate body, a legal category for that reason more serious than the one that excludes the two aforementioned crimes.
This Court reached this conclusion through a comparison between the criminal categories and their specific offensive scope, which is reflected in the corresponding sentencing treatment.
In this sense, Judgment No. 172 of 2025 observed that the crimes referred to in Articles 336, first paragraph, and 337, first paragraph, of the Criminal Code «have as their constituent elements the use of violence or threat to the detriment of the public official and the purpose of altering administrative action» and that «[t]he same elements are proper to the criminal figure referred to in Article 338 of the Criminal Code, with the specificity that the violence or threat is directed here to the detriment of a public authority constituted as a collegiate body, which justifies a more severe statutory penalty range», even where the conduct «is committed against individual members of the political, administrative, or judicial body, but always insofar as the individual is a projection of the collegiate body, therefore still within a context of greater gravity» (Considerato in diritto, point 3.2.1.).
Having thus defined the relationship between the criminal categories, identifying the one provided for in Article 338 of the Criminal Code as more serious, this Court deduced that the legislature's choice to disregard such a relationship for the purposes of particular tenuity of the act appeared manifestly incongruous.
7.– These considerations, however, cannot be extended to the comparison between the aforementioned categories and the crime of contempt of a public official, for which the challenged provision does not permit the application of the ground of non-punishability.
7.1.– According to well-established constitutional case law, the comparative assessment between legal categories, aimed at verifying the non-manifest unreasonableness of the legislature's choices—such as, in this case, that concerning the application of a ground of non-punishability—must have as its object homogeneous cases, otherwise rendering the comparison itself unproposable (Judgments No. 90 of 2025, No. 120 of 2023, No. 156 of 2020, No. 282 of 2010, and No. 161 of 2009).
The legal categories indicated by the referring judges from the perspective of Article 3 of the Constitution do not present this necessary homogeneity.
7.2.– In the first place, while it is true that, as highlighted by the referring judges, the crime referred to in Article 341-bis of the Criminal Code shares with the categories assumed as *tertia comparationis* the teleological direction of the conduct, insofar as it is aimed at altering the regular performance of a public function, it is equally true that in the former case the protected legal interest is represented by the honor and prestige of the official, whereas in the latter cases it is represented by their moral freedom and physical safety.
Consequently, the elements of the typical conduct also differ.
Indeed, in the crimes referred to in Articles 336, 337, and 338 of the Criminal Code, the perpetrator exerts coercion over another person's will through a violent action or the threat of an unjust harm dependent upon their own will; elements that are entirely extraneous to the typical conduct of the crime of contempt.
Furthermore, and above all, the categories differ in the type of offense inflicted upon administrative action.
The crimes put forward as *tertia* are indeed endangerment crimes (*reati di pericolo*); inasmuch as they are aimed at protecting the freedom of the official in the performance of their duties, they are consummated independently of the effect achieved by the criminal action, it being unnecessary for the latter to have effectively prevented the performance of the public official's act.
In contempt of a public official, by contrast, the injurious event must materialize, namely the offense to the honor and prestige of the administration by reason of that inflicted upon its official.
8.– The manner in which the typical offense of the crime referred to in Article 341-bis of the Criminal Code manifests itself is made evident by the wording with which this category was reintroduced into the legal system by Article 1, paragraph 8, of Law No. 94 of July 15, 2009 (Provisions concerning public security).
As this Court has specified, indeed, the crime is nowadays «constituted only if the offensive conduct [is] committed at the moment when the public official is performing a mandatory act of their office and therefore where the damage that such conduct can inflict is greatest» (Judgment No. 166 of 2024).
In this sense, according to the jurisprudence of legitimacy, «what is reproved by the legal system is not the mere lesion in itself of the honor and reputation of the public official, but rather the awareness of such violation by a subjective context broadened to include multiple persons present at the time of the action, to be committed within a spatial sphere specified as a public place or a place open to the public and in contemporaneity with the performance of the official act and because of or in the exercise of the public function» (ex plurimis, Court of Cassation, Fifth Criminal Section, Judgment of February 12–April 3, 2014, no. 15367).
8.1.– The legislative choice discussed here has excluded from the scope of penal relevance, precisely because they are deemed non-injurious to the prestige of the public official within a given community, all those conducts which, even if aimed at hindering or preventing the performance of the mandatory act, do not spread externally, remaining confined to the subjective dimension of the relationship between the author and the victim of the offense.
The significance of this circumstance constitutes a decisive element from the standpoint of the invoked review of reasonableness.
8.2.– The inclusion of the crime of contempt of a public official among those for which the offense cannot be deemed of particular tenuity is indeed traceable to the functional and social dimension of the prejudice it inflicts upon the image of the administration and its smooth running (*buon andamento*).
The stringent requirement of the publicity of the offense, which becomes criminally relevant only when the offense itself is objectively perceived by multiple persons, characterizes such prejudice in terms of a peculiar disvalue, consisting of the loss of credibility for the administration that inevitably derives therefrom.
In these terms, therefore, the legislature's choice to exclude the crime of contempt of a public official from the scope of application of the exonerating circumstance appears not unreasonable; as already observed by this Court in a similar case, it corresponds «to the discretionary identification of a complex legal interest, deemed worthy of special protection» (Judgment No. 30 of 2021).
9.– Lastly, it should be noted that, where the perpetrator of the crime has remedied the prejudice thus inflicted, the legislature has provided a special ground for the extinction of the crime, under the terms established by Article 341-bis, fourth paragraph, of the Criminal Code.
Indeed, that provision establishes that the crime is extinguished if «the defendant, prior to trial, has entirely repaired the damage by compensating it both toward the offended person and toward the entity to which the same belongs».
FOR THESE REASONS
THE CONSTITUTIONAL COURT
having joined the proceedings,
declares not well-founded the questions of constitutional legitimacy regarding Article 131-bis, third paragraph, of the Criminal Code, to the extent that it refers to Article 341-bis of the same code, raised—with reference overall to Articles 3 and 27, third paragraph, of the Constitution—by the Ordinary Court of Ancona, Criminal Section, sitting as a single judge, by the Ordinary Court of Brescia, Third Criminal and Review Section, sitting as a single judge, and by the Court of Appeal of Florence, First Criminal Section, by the orders indicated in the headnotes.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 5, 2026.
Signed:
Giovanni AMOROSO, President
Roberto Nicola CASSINELLI, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on November 5, 2026
The anonymized version conforms in its text to the original