Reiterated recidivism and the defendant's awareness: Cassation no. 16011/2025 clarifies the limits of art. 99 c.p.
With ruling no. 16011, filed on April 28, 2025, the Court of Cassation, fifth criminal section, returns to defining the boundaries of reiterated recidivism. The case concerned M. R., convicted by the Court of Appeal of Bologna, whose defence contested the aggravating circumstance under art. 99, paragraph 4, c.p. The focus is on an often underestimated aspect: the need for the defendant to be fully aware not only of previous final convictions but also of having committed further crimes after they became final.
The regulatory framework and case law
Art. 99 c.p. provides for an increase in penalty for those who, after a conviction, commit a new crime: the reiterated form requires at least two final convictions. The Constitutional Court, with pending suspension orders, has repeatedly raised questions about the compatibility of automatic recidivism with the principles of proportionality and culpability (arts. 3 and 27 of the Constitution). In 2023, the United Sections, judgment no. 32318/2023, reiterated that the aggravating circumstance cannot disregard a judgment on the actual dangerousness of the offender. Today's decision continues on this protective line.
The ruling and its meaning
In the context of reiterated recidivism, for its application, although a previous declaration of recidivism is not necessary, the mere existence of multiple final convictions for crimes that, in relation to the crime under judgment, demonstrate greater dangerousness of the offender is not sufficient. Instead, it is necessary that the new crime was committed with full awareness not only of the finality of previous convictions but also of having committed previous crimes after the final ascertainment of those committed previously.
The Court explains that reiterated recidivism cannot be applied in a purely arithmetic manner. The judge must ascertain two elements:
- the finality of the previous conviction judgments;
- the defendant's awareness of this finality at the time of committing the new crime, as well as the fact of having already recidivated.
The logic is to prevent the penalty increase from disregarding an actual additional coefficient of culpability. If the defendant is unaware of the irrevocability of previous convictions (e.g., judgments in absentia or omitted notification), the punitive rationale is lost.
Practical implications for defence and the judge
In light of this ruling, the defence can contest the aggravating circumstance by requesting that the prosecution prove the defendant's full knowledge of the previous judgments. Useful evidence can include:
- notifications of judgment extracts or execution orders;
- election of domicile at the defence lawyer's office and related communication;
- the defendant's admission during interrogation or trial examination.
The judge will also have to provide detailed reasoning, linking the increased social dangerousness to the offender's actual experience. A mere list of previous convictions is no longer sufficient.
The position of European law
The ECtHR, in its case law on ne bis in idem and unfavourable retroactivity, requires that any punitive increase be based on conscious and reasonably foreseeable conduct (case Del Río Prada v. Spain, 2013). The Cassation aligns itself, averting possible censures for violation of art. 7 ECHR.
Conclusions
Ruling no. 16011/2025 strengthens the protection of the defendant against automatic applications of the aggravating circumstance of reiterated recidivism. Legal professionals must emphasize the lack of proof regarding the defendant's awareness, while judges are called upon to provide more rigorous reasoning. Prospectively, the decision could also impact rehabilitation paths: by giving relevance to actual criminal intent, it encourages a more selective use of punitive measures.
