The Constitutional Court declares compulsory medical treatment without a defense lawyer unlawful

The Constitutional Court has declared the constitutional illegitimacy of art. 35 of the law of 23 December 1978, n. 833, in the part where it does not provide that the validation judgment of compulsory medical treatment in hospital inpatient conditions and its eventual extension must be carried out with the guarantees of technical defense. The ruling, judgment n. 157 of 2026, was filed in the Registry on 2 October 2026 and is published in the Official Gazette, 1st Special Series, n. 40 of 7 October 2026.

The judgment was promoted incidentally by the Ordinary Court of Florence by order of 29 December 2025, registered as n. 29 of the 2026 orders register, in the proceedings between L. C. and the Municipality of Empoli. The parameter invoked is art. 24 of the Constitution. The judgment was deliberated in the council chamber on 6 July 2026; the panel was presided over by Giovanni Amoroso, with Stefano Petitti as reporting judge and drafter.

The case from which the judgment arises

The appellant, suffering from schizophrenic disorder, had been subjected to compulsory medical treatment in hospital inpatient care, validated by the guardianship judge on 7 November 2025 and extended on 13 November 2025. During the hearing before the guardianship judge, he had stated: “I have several lawyers and I want you to call my lawyers,” specifically indicating their names. According to the referring court, it does not appear that the request was taken into consideration.

The Court of Florence had requested the introduction of optional technical defense only. The Court considered the issue well-founded, but in broader terms, because the simple option to appoint a trusted defender would have produced two distorting effects:

• it would be exercisable in practice only by those who maintain a sufficient degree of lucidity, since coercive treatment affects people in very different clinical conditions;
• it would end up discriminating based on the type of mental pathology and economic and social condition, leaving precisely the most vulnerable people without protection.

What the procedure must now provide

The Court has indicated the necessary integration of art. 35 of law n. 833 of 1978:

• notice to the recipient person, at the time of communication of the mayoral order, of the option to appoint a trusted defender;
• in case of failure to appoint one, assistance of a public defender designated by the guardianship judge from among the subjects registered in the lists referred to in art. 29 of the implementing rules of the code of criminal procedure;
• timely notice to the defender, who may participate in the hearing of the interested person carried out by the guardianship judge prior to validation;
• notification to the defender of the reasoned decree of validation or non-validation of the mayoral measure;
• similar guarantees in the event of any extension of the treatment and the relative validation.

Precedents, interventions, and invitation to the legislator

The decision follows judgment no. 76 of 2025, which had already mandated the communication of the mayoral ordinance, the hearing of the patient prior to validation, and the notification of the decree. The Court also refers to judgment no. 222 of 2004, regarding the right of defense of foreigners in its incompressible core, and the jurisprudence of the European Court of Human Rights concerning the deprivation of personal liberty due to psychic distress.

Intervening ad adiuvandum in the proceedings were S. P., C.S. S., S. D.A., and F. S., whose interventions were declared inadmissible by ordinance no. 112 of 2026. Written opinions, admitted by presidential decree on May 5, 2026, were filed by the Associazione radicale diritti alla follia, the Comitato dei cittadini per i diritti umani Onlus (CCDU), and the association L’altro diritto ODV with the inter-university center ADIR. The President of the Council of Ministers did not intervene in the proceedings.

The Court recognizes the organizational burden that mandatory technical defense may entail and addresses an invitation to the legislator to rethink the regulatory configuration of compulsory medical treatment (TSO), also evaluating the appointment of a special curator and the provision of subjects with interlocution and mediation functions, to promote consensual care pathways.

For readers, the judgment changes how the validation of a TSO is carried out: from now on, the guardianship judge must ensure a lawyer for anyone undergoing compulsory hospitalization, regardless of their ability to request one or afford one. The decision directly affects the fundamental rights of psychiatric patients and calls upon Parliament to rewrite a regulation that has remained unchanged since 1978.

Official Gazette of the Italian Republic, 1st Special Series – Constitutional Court, no. 40 of October 7, 2026, Judgment no. 157 of 2026 (filed in the Registry on October 2, 2026).