Constitutional Court

Substitution punishment may be excluded for hostile offences

The execution of custodial sentences must, however, respect the principles of re-education and humanity imposed by the Constitution

by Patrizia Maciocchi

30 July 2025

3' min read

Key points

Doubts of the Florence Court of Appeal
The principle of equality
The re-educational purpose of punishment

3' min read

Excluding from substitutive punishment those convicted ofhostile offences is not illegitimate, butthe execution of prison sentences must respect the principles of re-education and humanity imposed by the Constitution.

TheConsulta, with sentence 139, saves the Cartabia reform, which denies the application of themeasures alternative to prison to those convicted of so-called hostile offences, provided for in Article 4-bis of the Prison Order. According to the law judge, it is within the legislator's discretion to bar access to the 'benefit' to perpetrators of a series of offences, ranging from crimes committed for the purposes of terrorism to mafia association, from enslavement to drug trafficking, and even sexual violence. A red light that the Constitutional Court does not consider contrary to the Charter, stating, however, that the legislator and the prison administration have the 'precise duty' to ensure all those sentenced to prison terms 'conditions that respect the dignity of the person and the principle of the humanity of punishment'.

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Doubts of the Florence Court of Appeal

It was the Court of Appeal of Florence that had invoked the intervention of the Constitutional Court, according to which the preclusion envisaged by Cartabia would be on a collision course with Article 3 of the Constitution guaranteeing the principle of equality and with Article 27 concerning the rehabilitative function of punishment. In addition, again according to the referring judge, the stake introduced by the censured reform violated the delegation criterion contained in Article 1(17)(c) of Law 134/2021.

The meaning of the delegation would have been, in fact, to confer on the judge of cognition - in homage to the constitutional principles of the minimum necessary sacrifice of personal liberty and of the re-educative purpose of punishment, as well as with a view to encouraging alternative definitions of the trial - the discretionary power to identify, in each concrete case, the punishment most suitable to ensure the re-education of the convicted person and, together, the prevention of the danger of re-offending. A discretionary power cancelled for all defendants guilty of hostile offences, thus betraying the ratio of the enabling act. For the Constitutional Court, however, the delegated legislator did not go beyond its discretion, considering the assessments not in line with the reform's objectives of simplifying, speeding up and rationalising the criminal trial.

The principle of equality

The judges in the main proceedings had to decide on the criminal liability of two defendants of sexual violence in one case, and ofgroup sexual assault in conjunction with child pornography in the other. In the two cases, the sentence imposed did not exceed four years' imprisonment, and the defendants, who were not subject to pre-trial measures, could therefore have benefited from the application of penalties in lieu of imprisonment, which were excluded by Cartabia.

For the Constitutional Court, however, the rule that ended up in the Florentine judges' sights is not in conflict with the principle of equality. The legislature can, in fact, deny access to alternative penalties for all hostile offences, which are generally of significant gravity and of particular social alarm, including the case examined in which there was not even the mitigating factor of the minor gravity of the fact.

The re-educative purpose of punishment

Nor is the principle of the reeducative purpose of punishment violated, which requires that the punishment is always functional to the social reintegration of the convicted person, whatever the seriousness of the offence committed, but does not exclude that the punishment also serves other purposes, such as the protection of society against the residual dangerousness of the convicted person and the general prevention of offences. Purposes that may justify the execution of a custodial sentence even in respect of those who are no longer deemed socially dangerous.

The Court went on to emphasise how theCartabia reform, by widening the scope of substitute punishments, has come closer to the objective of the constitutional principle of the re-education of the convicted person: 'Avoiding the desocialising effects of prison and, at the same time, accompanying him along a path that values work, education, strengthening of family and social ties, opportunities for critical reconsideration of one's past, and possibly reconciliation with the victim of the crime.

In any case, the Court concluded, 'the need remains that even for those convicted of these offences, the prison sentence must be carried out in such conditions and in such a way as to encourage or in any case make re-education practicable'. Conditions not always ensured, today, in Italian prisons, where the situation of overcrowding "makes the pursuit of the re-educative purpose particularly arduous, as well as the very maintenance of minimum standards of humanity of punishment".