For the Constitutional Court

With the 'minor gravity' penalty also suspended for sexual acts with a minor

If the offence is considered of reduced gravity

by Giovanni Negri

5 May 2026

2' min read

Translated by AI

Versione italiana

2' min read

Translated by AI

Versione italiana

When the circumstance of minor seriousness has been recognised, the convicted offender for the offence of sexual acts with a minor must have the execution of the sentence suspended, so that he can apply for access to prison benefits and the supervising magistrate can make his assessment, without his personal liberty being restricted in the meantime by detention in prison.

One year in prison

This is the conclusion of Sentence No. 68 of the Constitutional Court with which the questions of constitutionality raised by the Court of Catanzaro were upheld. Thus, the rule obliging a person convicted of sexual acts with a minor to serve at least one year in prison was declared unconstitutional, even when the sentence is so short that it allows immediate access to alternative measures to detention.

Unreasonable rule

The Court held that this discipline is incompatible with the constitutional principles of equality and reasonableness (Article 3 of the Constitution.) and with the re-educative purpose of punishment (Article 27(3) of the Constitution).

The suspended sentence

The judgment recalls that the institution of suspension of enforcement of the sentence is intended to avoid the restriction of personal liberty in prison when the convicted person could be granted, from the outset, the possibility of serving the sentence according to alternative measures to detention.

Benefits blocked

On the other hand, the contested rules not only provided that a person convicted of sexual acts with a minor, even when the mitigating factor of minor seriousness was recognised, must begin serving his sentence in prison, but also prohibited access to alternative measures for the entire first year of imprisonment.

Unreasonableness

In the Court's view, this is a case of unreasonableness because, even in the face of the significant heterogeneity of the conduct attributable to the offence of sexual acts with a minor, which the legislature itself considered with the provision of the mitigating factor of minor seriousness, it cannot be assumed that the dangerousness of the convicted person is such as to make it necessary both to impose an immediate prison sentence and to make it impossible to have access to alternative measures before one year.

Sacrificed freedom

Lastly, the censured rules caused an unnecessary sacrifice of personal liberty, to the detriment of the offender's resocialisation path and without offering a corresponding benefit in terms of community protection.