Security Decree, even the mere possession of documents is terrorism
Problems of constitutionality of the rule anticipating criminal relevance regardless of concrete acts or self-training excluded
Key points
It triggers the terrorism offence also with the solely possession of material that contains instructions for the use of firearms or chemical weapons, to be used for terrorist actions, even if directed against a foreign state or an international organisation. The Supreme Court (judgment 8188/2026) analysesfor the first time and 'saves' Article 270-quinquies.3 of the Criminal Code, introduced by Security Decree 48/2025, which anticipates thecriminal protection at the stage of mere documentary possession, even if obtained by chance, provided that there is 'awareness' of what is possessed and the terrorist purpose. And thus the psychological element of the crime.
The Right to War
The Supreme Court thus rejected the request to raise constitutionality doubts initiated by the lawyer of Salem Ahmad, a Lebanese citizen, who had applied for of international protection to preventive detention - confirmed - on charges of terrorism for having held on his TikTok profile videos inciting the Palestinian people to armed war, with computer material for the preparation and the use ofwar devicesfor use against the Israelis. For the judges, the argument of the "right to war" against the occupiers does not pass, also because the suspect is in no way engaged in the conflict.
The contested offence is the one introduced by Article 270-quinquies.3. A new offence that is part of a series of more repressive regulatory interventions to combat terrorism, in implementation of EU directives. With this in mind, the legislator has constructed a rule that also gives criminal relevance to conduct that is prodromal to the carrying out of concrete acts.
The need to fill the regulatory gap
This was in the awareness of the need to fill the legal void on the possession of documentation preparatory to carrying out attacks. The new hypothesis is not, in fact, included in either Article 302 or Article 414 of the Penal Code, on the apologia or instigation of crimes for terrorist purposes, or in Article 270-quinquies, which punishes self-training for terrorist activities. For the Executive, even behaviour which, although 'static', deserves special attention - writes the Supreme Court - is also a crime, since it can represent thefirst moment of a criminal progression 'capable of leading to the concrete realisation of behaviour of a violent nature, as well as characterised by a terrorist finality'. The judges of legitimacy clear the field from the suspicion ofunconstitutionality because of the strong anticipation of the threshold of punishability 'given the existence of a specific selective criterion of the criminal relevance of the conduct, constituted by the psychological element, that is, the terrorist aim'.
The necessity and urgency requirement for the DL
Also unfounded is the further doubt of contrast with the Charter, due to the absence of the requirement of extraordinary necessity and urgency torecur to alaw decree. According to the Supreme Court, the government and the Chambers assessed 'as urgent the need to provide adequate instruments to combat the phenomenon of terrorism, including international terrorism'. Prerequisites, the assessment of which is 'left to the field of political judgements', which are not up to the judge of laws.
