Italian criminal law takes a significant step toward fairer and more individualised justice. With judgment no. 32 of 26 January 2026, the Constitutional Court declared unconstitutional a provision that, for decades, had prevented many defendants from accessing a suspended sentence, even where a prior conviction had been entirely extinguished by the legal effects of rehabilitation. A long-awaited decision, which deserves careful analysis both from a technical and a practical standpoint.
The Case That Gave Rise to the Judgment
The matter originated from an order issued by the G.u.p. (Preliminary Hearing Judge) of the Tribunal of Catania, which in February 2025 had raised a question of constitutional legitimacy concerning Articles 164, paragraph 2, no. 1, and 178 of the Criminal Code (codice penale). The judge had identified a fundamental contradiction: a person who had obtained rehabilitation — an institute designed precisely to fully reintegrate the convicted person into society — nonetheless continued to be barred from benefiting from a suspended sentence in any subsequent proceedings. In other words, rehabilitation formally extinguished the criminal effects of the conviction, yet its practical consequences for the purposes of the said benefit remained intact.
The conflict with Articles 3, 25 and 27 of the Italian Constitution appeared evident: on one side, the principles of equality and reasonableness; on the other, the rehabilitative purpose of punishment — both indispensable pillars of our criminal justice system.
The Constitutional Court's Decision
The Court, presided over by President Amoroso and with Justice Cassinelli acting as Rapporteur, partially upheld the question, declaring:
- The constitutional illegitimacy of Art. 164, paragraph 2, no. 1 of the Criminal Code (c.p.), insofar as it precludes a suspended sentence for those who have previously been sentenced to a custodial penalty in respect of which rehabilitation has been granted — including where the aggregate penalties exceed the limits prescribed by Arts. 163 and 164, fourth paragraph, c.p.;
- Unfounded, by contrast, the question concerning Art. 178, final clause, c.p., likewise raised with reference to Arts. 3, 25 and 27 of the Constitution.
The practical result is that henceforth a judge will be able to assess the granting of a suspended sentence without being automatically bound by the existence of a prior conviction that has already been subject to rehabilitation. The automatic preclusion, deemed irrational, gives way to an individualised assessment.
Why This Judgment Matters: The Principle of Individualisation of Punishment
At the heart of the decision lies a fundamental concept of modern criminal law: punishment cannot be applied in a mechanical fashion, but must be tailored to the individual and their specific personal history. A suspended sentence — and the broader
