With judgment no. 72 of 24 February 2026, the Constitutional Court has marked a new chapter in the long history of the relationship between mitigating circumstances and recidivism in the Italian criminal justice system. The target, once again, is Art. 69, fourth paragraph, of the Criminal Code: the provision which, in the balancing of aggravating and mitigating circumstances, prevents the judge from giving precedence to the latter when they are weighed against repeated recidivism. A prohibition that the Consulta has already eroded on several occasions, and which today is further curtailed in favour of those who have chosen — even before facing trial — to make full reparation for the harm caused to the victim.
The Case That Sparked the Debate: Residential Burglary and Damages Already Compensated
The proceedings originated before the Single-Judge Tribunal of Ragusa. A defendant, posing as a delegate of a church, had gained entry by deception into the home of a married couple, stealing 3,500 euros in cash. A serious offence, classified under Art. 624-bis of the Criminal Code as residential burglary. However, prior to the commencement of trial, the defendant had returned the entire sum stolen, thereby satisfying the mitigating circumstance provided for under Art. 62, no. 6, first part, of the Criminal Code — namely, having made full reparation for the damage through compensation and restitution.
The Ragusa judge, however, faced an obstacle: the defendant was burdened by repeated recidivism (Art. 99, fourth paragraph, of the Criminal Code), on account of numerous prior convictions, including for offences of the same nature. The law in force prevented him from giving full weight to the reparatory mitigating circumstance, constraining him at most to a declaration of equivalence between the circumstances. It is precisely this statutory constraint that the Tribunal of Ragusa considered constitutionally suspect, bringing the question before the Constitutional Court.
The Core of the Problem: A Disparity Difficult to Justify
The referring judge highlighted a contradiction that was difficult to ignore. As early as 2023, with judgment no. 141, the Consulta had declared unconstitutional the same prohibition with regard to the mitigating circumstance of particular insignificance of the damage (Art. 62, no. 4, of the Criminal Code). And yet, for the mitigating circumstance of full reparation of the damage — which implies a far more active and virtuous course of conduct on the part of the offender — the bar remained firmly in place.
The disparity was evident: one who had caused damage of minor significance could benefit from a finding of precedence of the mitigating circumstance; whereas one who had fully and promptly compensated the victim, demonstrating tangibly reparatory conduct, did not enjoy the same treatment. A logic that was difficult to sustain on the grounds of systemic coherence and constitutional principles.
The Court's Decision: Proportionality and Re-education at the Forefront
The Constitutional Court upheld the question, declaring the illegittimacy of the
