ORDER NO. 187
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
ORDER
in the proceedings concerning the constitutional legitimacy of Article 69-bis, paragraphs 1, 2, and 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving or restricting liberty), as replaced by Article 5, paragraph 3, of Decree-Law No. 92 of 4 July 2024 (Urgent measures regarding the penitentiary system, civil and criminal justice, and personnel of the Ministry of Justice), converted, with amendments, into Law No. 112 of 8 August 2024, brought by the Surveillance Magistrate of Nuoro by order of 12 August 2025 and by the Surveillance Court of Florence by order of 18 July 2025, in the surveillance proceedings concerning, respectively, F. G. and M. S., registered under numbers 183 and 190 of the 2025 register of orders and published in the Official Journal of the Republic, numbers 40 and 42, 1st special series, for the year 2025.
Having regard to the intervention briefs filed by the President of the Council of Ministers;
having heard in chambers on 5 October 2026 the Judge Rapporteur Francesco Viganò;
deliberated in chambers on 5 October 2026.
Whereas by order of 12 August 2025, registered under no. 183 of the register of orders for 2025, the Surveillance Magistrate of Nuoro raised, with reference to Articles 3 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy regarding Article 69-bis, paragraphs 1, 2, and 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving or restricting liberty), as replaced by Article 5, paragraph 3, of Decree-Law No. 92 of 4 July 2024 (Urgent measures regarding the penitentiary system, civil and criminal justice, and personnel of the Ministry of Justice), converted, with amendments, into Law No. 112 of 8 August 2024;
whereas the referring judge is seised of an application for early release concerning three semesters of sentence (from 17 August 2023 to 17 February 2025) submitted by F. G., an inmate detained at the Nuoro Correctional Facility serving a life sentence;
whereas, regarding the relevance of the questions, the *a quo* judge observes that, pursuant to the amended Article 69-bis of the Penitentiary System Act, the verification of the prerequisites for granting early release is no longer conducted, as in the past, upon the mere request of the person concerned, which could be submitted upon the expiration of each semester of served sentence, but solely in the following cases: on the occasion of an application for access to alternative measures or other similar benefits, when early release is relevant for the purpose of calculating the sentence served (paragraph 1); within the ninety days preceding the end of the sentence (paragraph 2); or, residually, upon application by the person concerned, provided that such application is supported, under penalty of inadmissibility, by a specific interest in the assessment, other than those referred to in paragraphs 1 and 2 (paragraph 3);
whereas, in light of the new provision, F. G.’s application would be inadmissible, as the person concerned is not in any of the situations provided for by paragraphs 1 and 2 of Article 69-bis of the Penitentiary System Act, nor has he alleged the existence of the «specific interest» now required by paragraph 3 of the provision; hence, only the upholding of the questions of constitutional legitimacy would enable the *a quo* judge to assess the application on its merits;
whereas, as to the non-manifest infundateness, the referring judge considers the censured legislation to be contrary to Articles 3 and 27, third paragraph, of the Constitution, because it deprives early release of its function of «acknowledging the efforts made by the inmate for a more effective social reintegration», transforming it «from an educational tool into a mere arithmetic calculation of sentence deduction», in contrast with the principles set forth in judgment No. 276 of 1990 of this Court, according to which the semi-annual cadence of judicial evaluation, by offering the convicted person the prospect of «an award to be attained within a short span of time», is functional to the re-educative objective;
whereas, according to the *a quo* judge, the deferral of the evaluation would penalise in particular «those convicted of long sentences for impeding offences» (*reati ostativi*), as it would prevent them from obtaining timely recognition of the commitment dedicated to their re-educative path and would limit dialogue with the surveillance magistrate, who, by ruling periodically on applications, could guide the inmate’s conduct, admonishing them in the event of rejection, or encouraging them to continue along the undertaken path in the event of approval;
whereas the President of the Council of Ministers has intervened in the proceedings, represented and defended by the State Attorney General’s Office (*Avvocatura generale dello Stato*), requesting that the questions be declared inadmissible or manifestly unfounded;
whereas, regarding admissibility, the State defense raises an objection – in relation to the censure referred to Article 3 of the Constitution – concerning the failure to identify a *tertium comparationis* and the failure to attempt a constitutionally oriented interpretation, observing that the notion of «specific interest» is sufficiently broad to allow the surveillance magistrate to value all situations in which the measure may provide utility to the inmate;
whereas, on the merits, the State Attorney General’s Office considers the reform of Article 69-bis of the Penitentiary System Act to be inspired by deflatory requirements and procedural rationalization, further observing that the psychological impetus inherent in the early release mechanism is not impaired, in light of the concurrent amendments to Article 656 of the Code of Criminal Procedure, pursuant to which the enforcement order must now indicate the sentence deductions that may be achieved by way of early release;
whereas – the State Attorney General’s Office adds – the regulatory amendments implementing the reform introduced by Decree-Law No. 92 of 2024, as converted, mandate «promptly updating the personal file with semi-annual evaluations and […] communicating negative evaluations to the inmate», further providing that «precisely in this latter situation, a specific case of interest to trigger the intervention of the judge must be identified»;
whereas by order of 18 July 2025, registered under no. 190 of the register of orders for 2025, the Surveillance Court of Florence raised, with reference to Articles 3, 24, and 27 (correctly: 27, third paragraph) of the Constitution, questions of constitutional legitimacy regarding paragraph 3 of the amended Article 69-bis of the Penitentiary System Act, as converted, «insofar as it allows the convicted person to formulate an application for early release only when they have expressly indicated in the application, under penalty of inadmissibility, a specific interest other than that referred to in paragraphs 1 and 2 of the same article»;
whereas the *a quo* judge is seised of the complaint against the declaration of inadmissibility of the application for early release (concerning five semesters of sentence, from 2 January 2018 to 3 December 2024) submitted by M. S., an inmate detained at the Prato Correctional Facility in execution of a residual sentence of four years and five days of imprisonment;
whereas, regarding the relevance of the questions, the referring judge highlights that, pursuant to the censured provision, the convicted person’s application must be declared inadmissible, whereas it could be assessed on its merits in the event of a declaration of constitutional illegitimacy of Article 69-bis, paragraph 3, of the Penitentiary System Act;
whereas, as to the non-manifest infundateness, the *a quo* judge observes that, although Article 54 of the Penitentiary System Act, which governs the substantive aspects of early release, has remained unchanged and continues to configure it as a «semi-annualized» benefit, the procedure outlined by the amended Article 69-bis inverts its logic: sentence deduction no longer operates as a «reward» promptly recognized, and its failure to be recognized assumes an essentially punitive connotation;
whereas the censured provision frustrates the re-educative principle set forth in Article 27, third paragraph, of the Constitution, since it does not allow the convicted person to «understand the value or disvalue of their own conduct through reading the reasoning of the judge’s decisions adopted semester by semester», and deprives them of «one of the few powers of "self-education” directly at their disposal to orient and direct their behavior», rendering «the system opaque», since the person concerned cannot have «certainty regarding the duration of their sentence, which can only be determined much later»;
whereas Article 3 of the Constitution would likewise be violated, as it is unreasonable to «wipe out the incentivizing function of the benefit» while maintaining «the semi-annual calculation criterion», that is, providing for a sentence reduction of forty-five days for each semester of served sentence, whereas «conversely, it is precisely the extremely close relationship between the amount of the reduction and the short reference period that forms the basis of the incentivizing and "rewarding” nature of the institution»;
whereas, regarding Article 24 of the Constitution, the *a quo* judge complains that the postponement of the evaluation on early release, on the one hand, deprives the inmate of the right to «apply for sentence reduction even merely for the purpose of "presenting themselves” to the judge, for the purpose of obtaining an alternative measure or a reward leave, with a residual sentence well lower than the current one»; on the other hand, it makes it more difficult for them, in the event of rejection of the application for early release, to lodge a complaint, since the right to counter-evidence and counter-deductions is exercised with greater difficulty years after the time periods forming the subject of the surveillance magistrate’s review;
whereas the President of the Council of Ministers has intervened in the proceedings, represented and defended by the State Attorney General’s Office, requesting that the questions be declared manifestly unfounded, based on arguments similar to those set forth regarding the merits in the order registered under no. 183 of the register of orders for 2025, and adding, with regard to the censures formulated with reference to Articles 24 and 27, third paragraph, of the Constitution, that the evaluation on the granting of early release, even if postponed, must in any case refer to each individual semester, without a negative judgment concerning one or more periods precluding the recognition of the deduction for those periods in which the legal conditions were met.
Considering that the two referral orders raise overlapping questions, so that the relative proceedings deserve to be joined for the purpose of the decision;
whereas, notwithstanding the different identification of the target of the censures in the operative parts of the respective orders (paragraphs 1, 2, and 3 of the amended Article 69-bis of the Penitentiary System Act for the Surveillance Magistrate of Nuoro, paragraph 3 alone for the Surveillance Court of Florence), both referring judges essentially complain about the necessity for the convicted person, pursuant to paragraph 3 of the censured provision, to allege a specific interest in order to submit an application for early release, other than that connected to calculating the amount of the served sentence for the purpose of access to alternative measures or other benefits, or to determining the end-of-sentence term near its completion – interests which the surveillance magistrate is required to address *ex officio* within the timeframes indicated in paragraphs 1 and 2;
whereas, consequently, the questions of constitutional legitimacy under examination must be considered circumscribed to the currently in-force text of Article 69-bis, paragraph 3, of Law No. 354 of 1975 (judgment No. 201 of 2025, point 3 of the Considerations in Law);
whereas in judgment No. 201 of 2025, handed down subsequent to the referral orders, this Court held that the aforementioned paragraph 3 of Article 69-bis – by precluding the convicted person from formulating an application for early release in the absence of a «specific interest» other than that concerning the determination of the end of the sentence and the deadline for access to alternative measures or penitentiary benefits – conflicted with Articles 3, 27, third paragraph, and 111, sixth paragraph, of the Constitution, since the global evaluation mechanism of semesters introduced by Article 5, paragraph 3, of Decree-Law No. 92 of 2024, as converted, by eliminating periodic feedback on the quality of the treatment path, frustrates the re-educative purpose of the sentence that early release is primarily intended to promote; and from a different perspective, makes it arduous, hypothetically many years after the reference semester, to fulfill the obligation to state the reasons for the judge’s ruling and to exercise the right of defense on the part of the convicted person;
whereas this Court effected the *reductio ad legitimitatem* of the censured legislation by excising, within paragraph 3 of the amended Article 69-bis of the Penitentiary System Act, the entire second part of the provision, which conditions the convicted person’s possibility to formulate an application for early release upon the existence of a specific interest («when they have a specific interest, other than those referred to in paragraphs 1 and 2, which must be indicated, under penalty of inadmissibility, in the application itself»), such that the survival of the initial clause («The convicted person may formulate an application for early release») now ensures the convicted person the possibility to formulate the application at any time in relation to the semester or semesters already accrued;
whereas, the censured provision having already been declared constitutionally illegitimate, in the terms hoped for by the referring judges, the questions currently before this Court must be declared manifestly inadmissible due to the supervening lack of an object (*ex multis*, orders nos. 131 of 2026, 87, and 78 of 2023).
on those grounds
THE CONSTITUTIONAL COURT
having joined the proceedings,
declares the manifest inadmissibility of the questions of constitutional legitimacy regarding Article 69-bis, paragraphs 1, 2, and 3, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of measures depriving or restricting liberty), as replaced by Article 5, paragraph 3, of Decree-Law No. 92 of 4 July 2024 (Urgent measures regarding the penitentiary system, civil and criminal justice, and personnel of the Ministry of Justice), converted, with amendments, into Law No. 112 of 8 August 2024, raised, with reference overall to Articles 3, 24, and 27, third paragraph, of the Constitution, by the Surveillance Magistrate of Nuoro and the Surveillance Court of Florence, by means of the orders indicated in the headnote.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 October 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on 5 November 2026
The anonymized version conforms in text to the original