On 31 March 2026, the Constitutional Court filed a ruling destined to have a concrete impact on numerous ongoing criminal proceedings throughout Italy. With judgment no. 44/2026, the judges of the Palazzo della Consulta declared constitutionally illegitimate a provision of the criminal code that, until now, prevented judges from applying the ground for non-punishment based on the particular tenuity of the offence to cases of non-aggravated attempted extortion. A decision that rebalances the criminal sanctioning system and restores to the judge an instrument of individual assessment that had been unjustifiably removed.
The Regulatory Framework: What Is the Particular Tenuity of the Offence
Article 131-bis of the criminal code provides that, where the harm caused by an offence is of particular tenuity — having regard to the manner of the conduct, the degree of culpability, and the minimal nature of the damage or danger — the perpetrator of the act shall not be punishable. This instrument is designed to prevent the criminal justice system from bearing down disproportionately on marginal conduct, while at the same time ensuring a sanctioning response that is proportionate and oriented towards the rehabilitation of the offender.
However, the third paragraph of the same provision identified a list of offences for which this assessment was categorically excluded. Among these was the offence of extortion, both in its completed form and — and this is where the problem lay — in its merely attempted form. In other words, the legislature had prevented the judge from even considering whether an attempted extortion, perhaps characterised by entirely marginal conduct, might warrant a mitigated criminal response.
The Question Raised by the Courts of Pavia and Cassino
The matter arose from two separate proceedings for attempted extortion, one before the GIP of the Court of Pavia and one before the Court of Cassino. In both cases, the judges had been confronted with conduct that, by reason of its manner and the intensity of the harm caused, appeared abstractly compatible with the ground for non-punishment — but for the statutory preclusion that prevented it.
The referring judges consequently raised a question of constitutional legitimacy, arguing that the provision created an unjustified disparity of treatment in comparison with a comparable offence: robbery. In relation to the latter, the particular tenuity of the offence is excluded only in aggravated circumstances, whereas the simple form — even when merely attempted — may benefit from the ground for non-punishment. Why, then, was the same assessment not permitted in respect of non-aggravated attempted extortion?
The Court's Reasoning: Manifest Irrationality in the Comparison Between Robbery and Extortion
The Constitutional Court shared the concerns of the referring judges, recognising the merits of the challenge grounded in Article 3 of the Co
