JUDGMENT NO. 203
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 656, paragraph 4-bis, final period, of the Code of Criminal Procedure, brought by the Court of Cassation, First Criminal Section, in the criminal proceedings against S. V., by order of October 6, 2025, registered as no. 217 in the 2025 register of orders and published in the Official Journal of the Republic no. 46, 1st special series, for the year 2025.
Having regard to the appearance in proceedings of S. V. and the intervention brief of the President of the Council of Ministers;
having heard Judge Rapporteur Massimo Luciani at the public hearing of October 6, 2026;
having heard attorney Antonio Turrisi for S. V. and State Attorney Salvatore Faraci for the President of the Council of Ministers;
deliberated in the chambers on October 6, 2026.
Rattenuto in fatto (Summary of the facts)
1.– By an order dated October 6, 2025 (registered in the register of orders under no. 217 of 2025), the Court of Cassation, First Criminal Section, raised, with reference to Articles 3 and 27 of the Constitution, questions regarding the constitutional legitimacy of Article 656, paragraph 4-bis, final period, of the Code of Criminal Procedure.
1.1.– As regards the underlying facts, the referring judge states that they are called upon to rule on the appeal in cassation brought by S. V. against the dismissal by the Judge for Preliminary Investigations of the Ordinary Court of Palermo, acting as the enforcement judge, of the application for the temporary suspension of the enforcement order issued by the public prosecutor, «with reference to the non-application of the statutory provision set forth in Article 656, paragraph 4-bis, of the Code of Criminal Procedure».
According to the defense strategy of the original appellant, the convicted person could be granted early release, having served three semesters of pre-trial detention under house arrest. Should this procedure be followed, the sentence imposed for the impeding offense would be deemed fully served, and this should result, in relation to the remaining sentence—insofar as it is less than four years of imprisonment—in the suspension of the imprisonment order.
In the grounds of the decision, the enforcement judge points out that S. V. was convicted not only of a non-impeding offense (charged under count A of the indictment), but also of an offense classified as such (count B), namely for the possession for the purpose of trafficking of a large quantity of narcotic substances; the latter offense is indeed included in the list of impeding offenses referred to in Article 4-bis of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty).
1.2.– As regards the relevance of the questions, the referring judge notes that the «particular procedural mechanism» devised by Article 656, paragraph 4-bis, final period, of the Code of Criminal Procedure was introduced (following the judgment of the European Court of Human Rights, Second Section, January 8, 2013, Torreggiani and Others v. Italy) by Article 1 of Decree-Law no. 78 of July 1, 2013 (Urgent provisions on the enforcement of sentences), converted, with amendments, into Law no. 94 of August 9, 2013. This mechanism was designed to address the phenomenon of prison overcrowding by aiming to render the suspension of the enforcement order possible through the immediate recognition of early release in cases where «the extent of the "sentence served” (both by virtue of the fungibility between pre-trial detention and the sentence, and precisely by virtue of the attribution of the accrued periods of early release) makes the suspension of the executive enforceability of the judicial title possible».
In such cases, indeed, the enforcement title must be suspended in relation to a specific quota of the remaining sentence to be served, which in ordinary cases is set at four years. This mechanism is correlated with the purpose inherent in the institution of suspending enforcement orders: namely, to prevent a convicted person sentenced to a short term of imprisonment from entering the prison system, thereby allowing them to apply for an alternative measure to detention while remaining at liberty.
The challenged provision, according to the referring judge, «contains an express prohibition of application "against persons convicted of the offenses referred to in Article 4-bis [...]”» and this constitutes «a clear and unequivocal prohibition that does not tolerate restrictive interpretations or, least of all, abrogation».
In other words, it is argued, the legislature «intended to exclude from the scope of application of the provision those individuals who, in relation to the contents of the enforcement title, have been convicted of one of the offenses included in the list referred to in Article 4-bis of the Penitentiary Act, without making any distinction between the hypothesis in which the attribution of early release (concerning the impeding title) may pave the way for the suspension of the title (which is the very core of the rule) and other hypotheses».
The questions are therefore relevant, because—by adhering to the prevailing case law of the Court of Cassation concerning the «divisibility of aggregate sentences»—«even where the Public Prosecutor is called upon to apply the provisions of Article 656 of the procedural code, the sentence referring to the impeding offense should be considered, as claimed by the appellant, entirely served by virtue of the period of pre-custody already suffered and the prior deduction of the period of early release».
By «splitting of the aggregate sentence», the referring judge emphasizes, is meant «the attribution of periods of sentence already served to the offense that conditions the in concreto application of a statutory provision worsening the penitentiary treatment»—such as, in particular, Article 4-bis of the Penitentiary Act. This aims to make possible, with reference to the sentence yet to be served, the application of statutory provisions that establish ordinary penitentiary treatment.
The principle of the «splitting of the aggregate sentence» is well-established in constitutional jurisprudence starting from Judgment No. 361 of 1994, which was delivered following Decree-Law no. 152 of May 13, 1991 (Urgent measures for the fight against organized crime and for transparency and good administration of administrative activity), converted, with amendments, into Law no. 203 of July 12, 1991. That judgment aimed to dispel doubts regarding the general applicability of the divisibility principle also to enforcement cases arising after the introduction of the worsening provision, and to affirm that the discipline dictated by Article 4-bis of the Penitentiary Act did not «create a sort of status of "dangerous prisoner” that permeates the entire enforcement relationship regardless of the specific conviction title».
The same principle has been affirmed by the case law of the Court of Cassation: in this regard, reference is made to the United Chambers of the Court of Cassation, Criminal Division, June 30–October 5, 1999, No. 14, and the more recent judgment of December 15, 2022–July 14, 2023, No. 30753, which—the referring judge continues—reaffirmed «the general principle whereby in the case of aggregated concurrent sentences, the most burdensome one for the offender must be deemed served first, and noted, in continuity with the prevailing nomophylactic interpretation, how by virtue of the principle of the divisibility of the aggregate sentence "once the sentence imposed for offenses included in Article 4-bis of the Penitentiary Act has been served, the prohibition on granting penitentiary benefits to persons convicted of one of the impeding offenses no longer has any reason to operate”».
Having stated this, the referring judge specifies that this principle is also applicable to the phase of suspending the enforcement order, since «it would be intolerable, in terms of the protection of personal liberty, to have a diversity of approach between the Public Prosecutor and the Enforcement Judge, so that the only sustainable conclusion is one that sees the application of the principle also to the phase referred to in Article 656 of the Code of Criminal Procedure» (reference is made to the Court of Cassation, First Criminal Section, Judgment No. 29469 of May 30–August 12, 2025, together with the case law cited therein).
From this it follows that the provision set forth in Article 656, paragraph 9, letter a), of the Code of Criminal Procedure—to the extent that it excludes the possibility of suspending the title against those convicted of the offenses referred to in Article 4-bis of Law no. 354 of 1975—could find application only if and insofar as, in the case of heterogeneous aggregation, the quota of the sentence referring to the offense included in the list of the aforementioned Article 4-bis has not already been entirely served. The raised questions of constitutional legitimacy are therefore relevant, since in the instant case it is precisely the prohibition on applying the special procedure under Article 656, paragraph 4-bis, of the Code of Criminal Procedure that prevents the sentence referring to the impeding offense from being considered entirely served.
1.3.– As regards the non-manifestly unfounded nature of the questions, the referring judge observes that «[w]hat comes into play, beyond the principle of re-educational finalism referred to in Article 27 of the Constitution—which is infringed by the mandatory entry into prison of an individual who could be the recipient of an alternative measure—is essentially the principle of reasonableness referred to in Article 3 of the Constitution, a principle that requires finding the rational foundation of a legislative choice to diversify (in peius) the treatment».
The infringement of the principle of reasonableness is determined by the fact that the provision under examination implements «exclusively "a procedural model”», inspired by the simplification of the procedure for the potential attribution of early release; an institution that neither tolerates differentiations based on the type of offense (since it is applicable also to those convicted of impeding offenses) nor in relation to the type of sentence (since it is applicable also to those sentenced to life imprisonment).
That being stated, «[i]f therefore the attribution of early release—in the ordinary course—is provided for by the legislature also with reference to the period spent in pre-trial detention, provided it has reached at least one semester [...] and if the recipient of the enforcement order is not in pre-trial detention in prison [...] the condition of a person convicted of an offense included in the extensive list of Article 4-bis of the Penitentiary Act [...] does not differ—in terms of the aspiration to obtain an immediate assessment of early release—from that of persons convicted of other types of offenses. The inapplicability of the procedural mechanism [...] to such individuals therefore results in their temporary entry into prison even in cases where the application for an alternative measure (by virtue of the effects of the aforementioned principle of the splitting of the aggregate sentence) would be rendered possible by the immediate attribution of early release, with the obligation—at that point—to suspend the title».
Therefore, the denial—solely on the grounds of the type of offense—of access to an exclusively procedural mechanism aimed at simplifying the granting of early release would result in a «surplus of punitiveness that finds no rational justification, given that [...] the convicted person aspiring to the suspension of the title is not subjected to a custodial measure, which points to the absence of pericula libertatis requiring containment».
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General's Office, requesting that the aforementioned questions of constitutional legitimacy be declared manifestly unfounded.
In the intervener's view, «the referring court asks this Court to remove all limits on the applicability of the institution. In this respect, the question is manifestly unfounded because, in the presence of those very same offenses, the operation of the general suspension of the enforcement order provided for by paragraph 5 of Article 656 of the Code of Criminal Procedure is also excluded».
Furthermore, it would not be irrational or unreasonable for the legislature, when introducing a favorable legal institution, to deem it appropriate that the enforcement title should not be suspended for certain serious offenses.
Moreover, it is argued that the «referring judge proceeds from a dualistic and contradictory premise because, on the one hand, they assume that the sentence for the impeding offense must be deemed fully served, considering, in the abstract, that the periods of early release which the convicted person might enjoy in respect of the pre-trial detention served should be counted in their favor, but at the same time they admit that, in reality, the sentence for the impeding offense cannot be deemed fully served, precisely because doing so requires a favorable assessment by the surveillance magistrate regarding its actual recognition». Consequently, the principle of the splitting of the aggregate sentence cannot be invoked until such time as an assessment by the surveillance magistrate is lacking.
3.– S. V., the appellant party in the main proceedings, entered an appearance, concluding that the questions are well-founded.
With reference to their relevance, the party reports that, putting an end to the house arrest regime to which he had been subjected since the beginning of the criminal proceedings, S. V. was arrested and taken to prison in execution of a remaining custodial sentence pursuant to an enforcement order dated April 1, 2025, following a final conviction for the offenses under Article 73, paragraph 1, of Presidential Decree no. 309 of October 9, 1990 (Consolidated Text of laws concerning the regulation of narcotics and psychotropic substances, prevention, treatment, and rehabilitation of related states of drug addiction), charged under count A), and Article 73, paragraph 4, aggravated pursuant to Article 80, paragraph 2, of the same Presidential Decree no. 309 of 1990, charged under count B) of the indictment. By the conviction judgment, issued following a summary trial (rito abbreviato), having identified the most serious offense as the non-impeding one, the sentence was determined as follows: for the offense under count A), a base sentence of four years of imprisonment, with an increase of two years of imprisonment for the continuation with the impeding offense under count B). At the time the enforcement order was issued, S. V. was under house arrest and had served one year, seven months, and twenty-seven days under such pre-trial regime, thereby accruing the expectation of being granted early release in relation to three semesters of preventive detention, amounting to one hundred and thirty-five days. If granted, this would have resulted in the service of a total custodial period of two years and twelve days of imprisonment. Consequently, the remaining custodial sentence to be actually served would have been less than four years, specifically amounting to three years, eleven months, and eighteen days of imprisonment.
In these terms, S. V. would have already served the portion of the sentence (two years of imprisonment) relating to the conviction for the impeding offense under count B) of the indictment.
Therefore, had the public prosecutor—once the period of preventive custody previously served under house arrest had been deducted from the custodial sentence to be executed—been able to preliminarily transmit the files to the surveillance magistrate for the evaluation of the detention periods accrued by the defendant for the granting of early release, the calculation of the remaining custodial sentence would have yielded a term of less than four years of imprisonment to be attributed exclusively to the non-impeding offense.
With reference to the requirement of non-manifest unfoundedness, the party—fully endorsing the referring judge's order and extensively citing relevant constitutional and ordinary case law—concludes by arguing that it would be constitutionally illegitimate not to recognize the duty of the public prosecutor, when preparing to issue an enforcement order—once any periods of pre-trial detention or sentences declared fungible relating to the enforcement title to be executed have been deducted—to preliminarily transmit the files to the surveillance magistrate for the recognition of early release whenever, in the case of convictions for impeding and non-impeding offenses recognized as continuous among themselves, the remainder of the sentence to be actually served by the convicted person is attributable solely to the non-impeding offenses and falls within the limits set forth in paragraph 5 of Article 656 of the Code of Criminal Procedure.
For these reasons, the challenged provision would violate multiple constitutional paradigms: i) the principle of equality, as it would cause an unreasonable difference in treatment between someone who, although held responsible for serious offenses, has already served the sentence, and someone who, despite deductions (sentence already served, pre-trial detention, eligibility for early release), must still serve a portion of the sentence traceable to impeding offenses. Such a situation, in addition to attributing to the convicted person an automatic status of a socially dangerous subject, would force the offender to enter prison despite «their expectation of obtaining the suspension of the execution of the custodial sentence, once the previously served detention periods are positively evaluated, with the granting of early release»; ii) the principle of reasonableness, since, as an effect of the challenged provision, a convicted person under house arrest who, by benefiting from the aforementioned deductions, would have fully served the portion of the sentence attributable to the impeding offenses, must enter prison and only thereafter request early release and, once obtained, request an alternative measure to detention from a custodial status. This mechanism is inconsistent with the ratio of the provision—introduced following the Torreggiani judgment of the ECtHR—and also with the idea that a period in prison is necessary for the observation of a convicted person for serious offenses in order to grant early release: having always been under house arrest, indeed, such a person «is not even known by prison staff [...] who will not be able to formulate any synthetic behavioral report»; iii) the principle of the re-educational purpose of the sentence under Article 27, third paragraph, of the Constitution, since, due to the automatism provided by the challenged provision, the convicted person is forced to enter prison for the first time in order to request early release, thereby effectively frustrating the re-educational purpose of the sentence.
Considerato in diritto (Considerations in law)
4.– By the order registered under no. 217 of the register of orders for 2025, the Court of Cassation, First Criminal Section, raised, with reference to Articles 3 and 27 of the Constitution, questions concerning the constitutional legitimacy of Article 656, paragraph 4-bis, final period, of the Code of Criminal Procedure.
4.1.– The underlying facts, the relevance, and the non-manifestly unfounded nature of the raised questions were illustrated by the referring judge in the terms reported above in the summary of facts. The positions taken by the appearing party and the intervening President of the Council of Ministers were also reported therein.
4.2.– No objections of inadmissibility were raised regarding the questions submitted, nor does this Court deem it necessary to raise any doubts of admissibility ex officio.
The questions may therefore be examined on their merits.
4.3.– Preliminarily, the perimeter of the questions examined must be precisely defined in light of the facts and the reasoning of the referral order.
The questions indeed concern a hypothesis of heterogeneous aggregation of sentences, for impeding and non-impeding offenses, in which—pursuant to the principle of the divisibility of the aggregate sentence—the sentence referable to the impeding offense should be considered entirely served by virtue of the period of pre-custody already suffered and, should the questions prove well-founded, the prior computation of sentence deductions connected to early release, while the remainder of the custodial sentence to be served for the non-impeding offenses alone should be deemed to fall below the sentence limits referred to in paragraph 5 of the same article.
5.– It is appropriate to preface the examination on the merits of the aforementioned questions with a brief reconstruction of the legislation concerning the suspension of the execution of custodial sentences, to the extent that this is relevant for the purposes of the present judgment of constitutional legitimacy.
5.1.– The provision subject to challenge is part of a regulatory microsystem designed by Article 656 of the Code of Criminal Procedure (entitled «Execution of custodial sentences»), which is the result of multiple legislative interventions that have introduced significant adjustments to the regulation of the mechanism for suspending the execution of custodial sentences.
This provision was first entirely amended by Article 1, paragraph 1, of Law no. 165 of May 27, 1998 (Amendments to Article 656 of the Code of Criminal Procedure and to Law no. 354 of July 26, 1975, and subsequent amendments), then reformed in relation to paragraphs 5, 6, 8, and 10 by Article 10 of Decree-Law no. 341 of November 24, 2000 (Urgent provisions for the efficacy and efficiency of the Administration of Justice), converted, with amendments, into Law no. 4 of January 19, 2001. Subsequently, by Article 9, paragraph 1, of Law no. 251 of December 5, 2005 (Amendments to the Criminal Code and to Law no. 354 of July 26, 1975, regarding generic mitigating factors, recidivism, the balancing judgment of offense circumstances for recidivists, usury, and statute of limitations), letter c) was added to paragraph 9, introducing a new impeding condition to the operation of the suspension of execution, which was later suppressed by Article 1, paragraph 1, letter b), of Decree-Law no. 78 of July 1, 2013 (Urgent provisions on the enforcement of sentences), converted, with amendments, into Law no. 94 of August 9, 2013. Most recently, amendments were added pursuant to Article 38, paragraph 1, letter a), of Legislative Decree no. 150 of October 10, 2022 (Implementation of Law no. 27 of September 2021, no. 134, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the swift resolution of judicial proceedings), concerning the subject of restorative justice.
The general rule is set forth in paragraph 1, according to which: «When a conviction judgment to a custodial sentence must be executed, the public prosecutor shall issue an enforcement order whereby, if the convicted person is not detained, their imprisonment is ordered. A copy of the order shall be delivered to the interested party».
The exception to this rule is provided by the possibility of suspending the enforcement order, contemplated by paragraph 5: «If the custodial sentence, even if constituting the remainder of a longer sentence, does not exceed three years, or four years in the cases provided for by Article 47-ter, paragraph 1, of Law no. 354 of July 26, 1975, six years in the cases referred to in Articles 90 and 94, or eight years in the cases referred to in Article 94-ter of the consolidated text approved by Presidential Decree no. 309 of October 9, 1990, and subsequent amendments, the public prosecutor shall, except as provided in paragraphs 7 and 9, suspend its execution. [...]». It should moreover be recalled that by Judgment No. 41 of 2018 this Court declared the constitutional illegitimacy of the aforementioned paragraph to the extent that it provides for the suspension of the execution of a custodial sentence not exceeding three years, instead of four years.
The public prosecutor authorized to execute the final judgment thus bears the burden of verifying whether the sentence to be served in concreto—which, by express statutory indication, may also consist of the remainder of a longer sentence—falls within the aforesaid limits. In the event of a positive outcome of this assessment—and of the negative verification concerning the impeding conditions set by paragraphs 7 and 9 of Article 656 of the Code of Criminal Procedure—the public prosecutor is bound to issue the enforcement order and a concurrent suspension decree.
5.2.– The inclusion of paragraph 4-bis in Article 656 of the Code of Criminal Procedure, effected by Article 1, paragraph 1, letter b), of Decree-Law no. 78 of 2013, as converted, pursues the objective of favoring the operation of the suspension mechanism through the initiative of the public prosecutor (preliminary to the issuance of the imprisonment order) to transmit the files to the surveillance magistrate for the potential recognition of early release; an objective further enhanced by the elevation, through Judgment No. 41 of 2018 of this Court, of the limits of the sentence to be served in concreto (ordinarily, four years).
Through this reform, the legislature has thus allowed for a preliminary calculation, with respect to the sentence to be executed or still to be executed, in order to broaden the possibilities of applying the suspension mechanism, while respecting the relative sentence limit.
If, following this preliminary calculation, the public prosecutor ascertains that the remaining sentence to be served, once the deduction resulting from early release is calculated, does not exceed the sentence limits (ordinarily, four years) that justify the issuance of the suspension decree, after verifying the existence of periods of pre-trial detention or sentences declared fungible, they shall transmit the files to the surveillance magistrate.
In this regard, it should be noted that Article 5, paragraph 1, letter b), of Decree-Law no. 92 of July 4, 2024 (Urgent measures concerning penitentiary matters, civil and criminal justice, and personnel of the Ministry of Justice), converted, with amendments, into Law no. 112 of August 8, 2024, inserted paragraph 10-bis into Article 656 of the Code of Criminal Procedure, establishing that in the enforcement order for a custodial sentence issued by the public prosecutor, the sentence to be served must be indicated both "gross" and "net" of deductions.
5.3.– It must nevertheless be noted that the legislature has provided for certain prohibitions on suspending the enforcement order, in relation to the type of offense established and the status of the person concerned at the time the judgment became final.
The hypotheses provided by paragraph 9 of Article 656 of the Code of Criminal Procedure concern, first of all, those who, at the time the judgment becomes final, are in a state of pre-trial detention in prison for the deed subject to the conviction to be executed: the rationale of the prohibition lies in the fact that in such a case, the suspension of the enforcement order is logically unfeasible, since the convicted person is already in prison.
Secondly, consideration must be given to (and this bears direct relevance to the questions of constitutional legitimacy under examination) the prohibition on suspending the enforcement order for custodial sentences imposed on persons convicted of so-called impeding offenses included in the list of Article 4-bis of the Penitentiary Act, who cannot benefit from suspension even when such a sentence does not exceed four years. They must therefore enter prison, and only from prison will they be able to apply for an alternative measure and obtain it should the prerequisites be met.
5.4.– That being stated, it must be observed that the prohibition on the preliminary calculation of sentence deductions connected to early release for the purpose of suspending the enforcement order—which is the subject of the challenged provision—may come into play in particular in cases of aggregated sentences.
The material or legal aggregation of concurrent sentences for different offenses is governed by Articles 76, 77, 80, and 81 of the Criminal Code, with the effect of configuring a single sentence referable to a single enforcement relationship pursuant to Article 663 of the Code of Criminal Procedure.
In this regard, however, the so-called dissolution of the aggregate sentence comes into play. This notion was illustrated by this Court in Judgment No. 361 of 1994, where it was affirmed that the measure unifying custodial sentences could never result in harm to the convicted person, so that, wherever certain negative effects were correlated to individual sentences merged into the legal aggregation, each of them had to regain its distinct individuality through a partial and temporary dissolution of the aggregate sentence.
In the same ruling, it was further emphasized that if sentences relating to offenses under Article 4-bis of the Penitentiary Act—for which an absolute preclusion existed at the time, whereas today only a limitation on benefits exists—were merged into the aggregation, this circumstance would not entail the attribution of the status of a «dangerous subject» for the entire enforcement relationship, regardless of the specific title under execution.
This logic was followed by the United Chambers of the Court of Cassation in Judgment No. 14 of 1999, extending it from legal aggregation to material aggregation as well. It was emphasized that a different interpretation would lead to the paradoxical effect of assigning to the quantity of the sentence relating to the impeding offense a permanent impeding efficacy regarding penitentiary benefits; consequently, a constitutionally oriented interpretation, in compliance with the principles of reasonableness, equality, and the resocializing function of the sentence, had to prevail over the affirmation of the single-sentence rule pursuant to Article 76, first paragraph, of the Criminal Code.
As recently observed by the same ordinary case law, that ruling elevated the dissolution of the aggregate sentence to a «general principle of the system of sentence enforcement—where distinct but concurrent sentences are executed pursuant to Articles 76 and 80 of the Criminal Code—since this institution is founded on the necessity of "decomposing” the determination measure of concurrent sentences issued for different offenses, and allows access to penitentiary benefits where the "fraction” of the sentence relating to the so-called "impeding offense” has been served». Indeed, the provisions limiting access to penitentiary benefits cannot assume a general scope in relation to the entire enforcement phase, but must be limited to the part of the enforcement relationship that refers to the sentence imposed for the impeding offense. Therefore, «[w]here the said fraction of the sentence has been entirely served, the enforcement relationship exists, but with reference to the fractions of the sentence attributable to different legal types, and in such a case the individual fully reacquires the faculties and benefits that the law recognizes to the convicted person, within the limits of reasonableness» (Court of Cassation, No. 29469 of 2025).
Moreover, ordinary case law had already pointed out that a different orientation would risk making the application of detrimental treatment depend solely on the entirely casual event of a single enforcement relationship instead of multiple relationships stemming from the execution of individual convictions, with the further incongruity that, in the case of legal aggregation—conceived solely to temper the harshness of material aggregation—it would instead result in harm to the interested party (Court of Cassation, First Criminal Section, Judgment No. 2529 of March 26–May 12, 1999).
Recently it has also been clarified that this principle, elaborated by ordinary and constitutional case law with reference to access to alternative measures to detention falling under the competence of the surveillance court, «in the absence of precise contrary legal arguments», is also applicable to the suspension of the enforcement order (again Court of Cassation, No. 29469 of 2025).
Finally, reference must be made to the principle, recently reaffirmed by the Court of Cassation, that for the purpose of granting penitentiary benefits following the dissolution of the aggregate sentence, the most burdensome sentence is to be considered served first: «[h]owever, the longstanding principle of law remains firm according to which, in the case of material aggregation of concurrent sentences, the most burdensome one for the offender must be understood as served first, with the consequence that, where a sentence imposed also for an impeding offense regarding the enjoyment of penitentiary benefits must be served, the sentence served must be imputed to it first and foremost (among many, Section 1, No. 613 of 22/3/1999 [...])» (Court of Cassation, Criminal United Chambers, No. 30753 of 2023).
Therefore, in the event that the sentence imposed for the impeding offense, by virtue of the dissolution of the aggregate sentence and the computation of pre-trial detention pursuant to Article 657 of the Code of Criminal Procedure, has already been entirely served, the suspension aimed at preventing the convicted person from entering prison pending the potential request for an alternative measure and the relative decision of the surveillance court cannot be precluded.
Ordinary case law thus appears consolidated in affirming that, regarding the execution of (relatively) short sentences, since the principle of the divisibility of the aggregate sentence must apply whenever favorable consequences for the convicted person may derive therefrom, it must be considered that the prohibition on suspending enforcement sanctioned by paragraph 9 of Article 656 of the Code of Criminal Procedure in the case of conviction for any of the offenses under Article 4-bis of the Penitentiary Act does not apply to an aggregate sentence, when the remaining sentence to be served refers solely to an offense not included among the impeding ones. Indeed, ordinary case law has ruled that «in observance of the principle of the divisibility of the aggregate sentence for the purposes of enjoying penitentiary benefits, it must be considered that the suspension of the enforcement order may take place, pursuant to Article 656, paragraph 5, of the Code of Criminal Procedure, if, even though the same includes a sentence imposed for an offense forming part of those indicated in Article 4-bis of the Penitentiary Act, said sentence can be considered already served through pre-trial detention» (Court of Cassation, First Criminal Section, Judgment No. 10024 of December 21, 2022–March 9, 2023; in the same terms, Judgments No. 42462 of October 15–November 5, 2009; No. 13583 of February 19–March 27, 2009; No. 2090 of December 19, 2007–January 15, 2008; No. 14563 of April 12–April 27, 2006; No. 24981 of May 31–July 8, 2005; No. 22479 of April 16–June 7, 2002, as well as Court of Cassation, Criminal United Chambers, No. 30753 of 2023).
6.– The questions are well-founded.
6.1.– The interpretive outcomes of constitutional and ordinary case law recalled in the preceding point 5 concern: i) the dissolution of the aggregate sentence (legal and material); ii) the attribution of pre-trial detention or fungible sentence to the penalty imposed for the impeding offense (considered more burdensome), for the purpose of considering it totally served; iii) the recognition of the suspension of the enforcement order in cases where, following the dissolution of the aggregate sentence, the penalty for impeding offenses is found to be served.
It is also relevant to emphasize, for the purposes of today’s examination, the eligibility for early release even for persons convicted of offenses under Article 4-bis of the Penitentiary Act.
6.2.– Within this regulatory and interpretive framework, the role conferred upon the public prosecutor must be highlighted. The public prosecutor holds the power and duty to ex officio suspend the execution of the sentence before it begins, in order to allow recourse to mechanisms preordained for granting alternative measures before the convicted person enters the prison system, thereby preventing them from necessarily passing through prison even when the abstract conditions for such measures are met.
The State Attorney General's Office argues that «the referring judge proceeds from a dualistic and contradictory premise because, on the one hand, they assume that the sentence for the impeding offense must be deemed fully served, considering, in the abstract, that the periods of early release which the convicted person might enjoy in respect of the pre-trial detention served should be counted in their favor, but at the same time they admit that, in reality, the sentence for the impeding offense cannot be deemed fully served, precisely because doing so requires a favorable assessment by the surveillance magistrate regarding its actual recognition». This argument, however, overlooks the very role of the public prosecutor just mentioned (exercised, of course at this stage, with reference solely to non-impeding offenses): the mere arithmetic calculation performed by the prosecutor indeed entails the suspension of execution and the transmission of the files to the surveillance magistrate competent to decide on the recognition of early release and on the application for access to alternative measures. The suspension of execution is ordered on the simple basis of the preliminary computation by the public prosecutor of the sentence deductions connected to early release abstractly accrued by the convicted person, even though the surveillance magistrate retains decision-making power regarding the recognition of the measure.
6.3.– That considered, it is unreasonable to exclude the preliminary computation by the public prosecutor of sentence deductions connected to early release when, following such computation, the portion of the sentence referable to the impeding offense pursuant to Article 4-bis of the Penitentiary Act must be deemed served. Once living law has recognized the splitting of the aggregate sentence to overcome the preclusion posed by paragraph 9 of Article 656 of the Code of Criminal Procedure (Court of Cassation, First Criminal Section, Judgments No. 47113 of June 23–November 23, 2023, and No. 23902 of April 16–June 3, 2013), it is unreasonable to prevent the computation of deductions for the potential application of early release in order to consider the sentence relating to the impeding offense as "served".
By doing so, indeed, the convicted person is forced to enter the prison system to obtain the recognition of a sentence deduction that has already accrued outside of it, which corresponds to no constitutionally worthwhile purpose. On the other hand, early release can prescind from an intramural evaluation and may also be based on the conduct maintained by the offender prior to entering prison (Court of Cassation, First Criminal Section, Judgments No. 13412 of February 19–April 9, 2021, and No. 894 of September 9, 2019–January 13, 2020).
The State Attorney General's Office argues that the choice to impose upon persons convicted of offenses under Article 4-bis of the Penitentiary Act the requirement to apply for an alternative measure to prison only once they have already entered it falls within the broad discretion of the legislature. However, this argument misses the mark, since such discretion must always be exercised in compliance with the principle of reasonableness and, in any event, all relevant constitutional paradigms.
As already affirmed by ordinary case law, such a choice results in a treatment in peius for a specific category of convicts, conflicting with Article 27 of the Constitution and the principle of reasonableness, since it would make the application of detrimental treatment depend solely on the entirely casual event of a single enforcement relationship instead of multiple relationships stemming from the execution of individual convictions, with the further incongruity that, in the case of legal aggregation—conceived solely to temper the harshness of material aggregation—it would instead result in harm to the interested party (Court of Cassation, No. 2529 of 1999). The very casualness of the conditioning event demonstrates the lack of a constitutionally appreciable rationale for the choice, which is connected to no worthwhile preventive, punitive, or re-educational purpose.
This observation appears even more significant when (as in the case underlying the a quo proceedings) the convicted person has never entered prison, having "served" the pre-trial custody under house arrest (which is in itself symptomatic of the absence of pronounced social dangerousness), despite a conviction for an offense under Article 4-bis of the Penitentiary Act.
The lack of an appreciable rationale is compounded by the compromise of the rationale that inspired the legislature itself when it decided to introduce paragraph 4-bis into Article 656 of the Code of Criminal Procedure, which—as already noted—was intended to follow up on the Torreggiani judgment of the ECtHR by simplifying access to early release.
To this must be added that, since the sentence to be served is a (relatively) short custodial one, it is entirely possible that—as this Court has already had occasion to note in Judgment No. 216 of 2019—«the decision of the surveillance court intervenes after the individual has already entirely or almost entirely served their sentence»; the latter eventuality being «unfortunately not infrequent, given the notorious workload overload afflicting the surveillance judiciary, as well as the time necessary for the social service report regarding the observation of the convicted person in prison to be prepared».
6.4.– It must also be noted that, since early release may be granted even to persons convicted of impeding offenses, also in relation to pre-trial custody served, sentence deductions could be recognized while they are already in prison—following the dissolution of the aggregate sentence—but could not be recognized when, as in the case brought before the a quo proceedings, they are under house arrest or even at liberty. In such a hypothesis, therefore, despite the absence of particular social defense needs, a person convicted of impeding offenses, even though they have already served—upon computing deductions connected to early release—the relative quota of the sentence, must enter the prison system to obtain the recognition of a sentence deduction accrued outside of prison, which lacks any logical foundation. Furthermore, this circumstance would entail, in substance, the attribution to the convicted person of the status of a «dangerous subject» (pursuant to what was already observed in Judgment No. 341 of 1994) for the entire enforcement relationship, regardless of the specific title under execution.
Hence further confirmation of the intrinsic unreasonableness of the prohibition on the preliminary computation of sentence deductions connected to early release for persons convicted of impeding offenses, for the purpose of suspending the enforcement order by the public prosecutor.
6.5.– With more specific reference to Article 27 of the Constitution, it must be preliminarily recalled what this Court stated as early as Judgment No. 306 of 1993: «th[e] solutio[ns] adopte[d] [by the legislature], to inhibit access to alternative measures to detention for persons convicted of certain serious offenses» have «resulted in a significant compression of the re-educational purpose of the sentence. Indeed, typification by offense titles does not appear consonant with the principles of proportionality and individualization of the sentence that characterize penitentiary treatment, while the normative tendency toward configuring "types of authors” for whom reeducation would be impossible or might not be pursued appears concerning».
In the present case, the preclusive automatisms coming into play in the questions submitted for today's examination also appear in tension with this Court's case law orientation aimed at rigorously scrutinizing hypotheses of automatisms or presumptions, which are not unconstitutional in themselves, but potentially damaging to the requirement of ensuring space for judicial discretion when it is necessary for the proper exercise of the State's punitive power. Here, in particular, on the one hand, conduct of varying gravity may converge into the same criminal offense (for all, Judgment No. 265 of 2010); on the other hand, the catalog of impeding offenses has been progressively expanded and now presents a structure stratified into three "tiers" of offense gravity and conditions for accessing benefits, differentiated with respect to the legal qualification of the conviction title (Judgment No. 41 of 2018). This is an articulation that finds no correspondence in provisions which, like the challenged one, while prohibiting a simplified procedure for suspending sentence execution, refer to Article 4-bis of the Penitentiary Act—precisely—without distinguishing between the different "tiers of gravity" of offenses and the different levels of the presumption of dangerousness.
7.– Since a constitutionally oriented interpretation of the challenged provision is not possible—precluded as it is by its literal wording, since, after describing the simplified procedure preparatory to the suspension of execution, it mandates that «[t]his provision shall not apply to persons convicted of the offenses referred to in Article 4-bis of Law no. 354 of July 26, 1975»—its constitutional illegitimacy must therefore be declared, for violation of Articles 3 and 27 of the Constitution.
Indeed, it precludes persons convicted and recognized as responsible for offenses under Article 4-bis of the Penitentiary Act from obtaining the suspension of the enforcement order following access to the simplified procedure of "preliminary computation of deductions" for early release.
Consequently, said regulatory provision is constitutionally illegitimate to the extent that it excludes the application of the provision set forth in paragraph 4-bis of Article 656 of the Code of Criminal Procedure against persons convicted of offenses under Article 4-bis of the Penitentiary Act even when, in the case of aggregated sentences, the custodial sentence referable to such offenses would be entirely served as an effect of applying Article 657 of the Code of Criminal Procedure and computing deductions connected to early release, and the remaining sentence to be served solely for offenses other than those under Article 4-bis of the Penitentiary Act would not exceed the limits indicated by paragraph 5 of Article 656 of the Code of Criminal Procedure.
on these grounds
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Article 656, paragraph 4-bis, final period, of the Code of Criminal Procedure, to the extent that it excludes the application of the provision set forth in the same paragraph 4-bis against persons convicted of the offenses referred to in Article 4-bis of Law no. 354 of July 26, 1975 (Rules on the penitentiary system and the enforcement of measures depriving and restricting liberty) even when, in the case of aggregated sentences, the custodial sentence referable to such offenses would be entirely served as an effect of applying Article 657 of the Code of Criminal Procedure and computing deductions connected to early release, and the remaining sentence to be served solely for offenses other than those under Article 4-bis of Law no. 354 of 1975 would not exceed the limits indicated by paragraph 5 of Article 656 of the Code of Criminal Procedure.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 6, 2026.
Signed:
Giovanni AMOROSO, President
Massimo LUCIANI, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on November 13, 2026
The anonymized version conforms in text to the original