Illegal occupation: the Court of Rome refers the Constitutional Court regarding the exculpatory circumstance

The Constitutional Court must determine whether the ground for non-punishability provided for those who illegally occupy a property intended as someone else’s residence and subsequently collaborate with the authorities by vacating it can also apply to the crime of invasion of lands or buildings. The issue was raised by the Court of Rome, IX Criminal Section, via an order dated June 17, 2026, published in the Official Gazette, 1st Special Series – Constitutional Court, no. 37 of September 16, 2026, order no. 133. Judge Mario Erminio Malagnino doubts the constitutional legitimacy of Art. 633 of the Criminal Code for violation of Art. 3 of the Constitution.

The proceedings concern M. M., who was served with a penal decree of conviction issued by the GIP at the Court of Rome on October 31, 2024, for the crime under Arts. 633-639-bis of the Criminal Code, for having arbitrarily invaded a property owned by ATER. Following the opposition, the summons to appear in court was dated February 11, 2026; at the hearing on May 19, 2026, the defense requested the application of the exculpatory circumstance, citing the defendant’s extensive cooperation and the voluntary vacation of the property upon the request of local police officers, documented by the c.n.r. of February 9, 2024, and the access and eviction report. The public prosecutor requested a declaration of manifest groundlessness.

The regulation and the relationship of specialty

Art. 634-bis of the Criminal Code, very recently introduced by Decree-Law no. 48 of April 11, 2025, converted into Law no. 80 of June 9, 2025, punishes anyone who, through violence or threat, occupies or holds without title a property intended as someone else’s residence or its appurtenances, or prevents the return of the owner or whoever lawfully holds it. The third paragraph provides the ground for non-punishability for those who collaborate with the authority and voluntarily comply with the order to vacate.

According to the Court, this offense is in a relationship of specialty with that of Art. 633: the legislator has carved out a specific conduct from the general conduct of property occupation, characterized by the use of violence or threat and the destination of the property as someone else’s residence. Art. 633 would thus be reduced to a mere residual conduct.

Penalties and procedural consequences

• Art. 634-bis: imprisonment from two to seven years.
• Art. 633: imprisonment from one to three years, in addition to a fine of very little significance.
• For the new offense, optional arrest in flagrante and the application of the most severe personal precautionary measures are permitted.
• For the new offense, the suspension of proceedings with a probation period (messa alla prova) is excluded.

The alleged unreasonableness

The judge considers it evident that the legislative choice to allow the excuse only for the most serious conducts under Art. 634-bis, while excluding it in the less serious and residual hypotheses of Art. 633, is unreasonable, resulting in a violation of the principle dictated by Art. 3 of the Constitution. The relevance of the decision in the merits of the case is proven by the express request of the defense and the documentation in the records regarding the defendant’s collaborative conduct.

In the ruling, the Court raises the issue of constitutional legitimacy, suspends the ongoing proceedings with the consequent suspension of the statute of limitations until the definition of the incidental judgment before the Constitutional Court, orders the immediate transmission of the records, and orders the notification of the ordinance to the President of the Council of Ministers and the communication to the Presidents of the Senate of the Republic and the Chamber of Deputies.

The decision awaited from the Court affects owners, occupants, and eviction procedures directly: if the issue were accepted, even those who occupy another’s property without violence or threat could benefit from non-punishability by spontaneously vacating the property, with significant effects on defense strategies and the management of evictions by the owning entities.

Source: Official Gazette of the Italian Republic, 1st Special Series – Constitutional Court, no. 37 of September 16, 2026, ordinance no. 133 of the Court of Rome of June 17, 2026 (26C00160).