Reformatio in Peius and Continuing Offence: The Court of Cassation and Ruling No. 8872 of 2025

Criminal law is a constantly evolving field, where every judicial pronouncement can redefine the contours of established principles. The recent Ruling No. 8872, filed on March 4, 2025, by the Court of Cassation, presided over by Dr. E. D. S. and reported by Dr. A. L. A. R., offers an interesting interpretation of the prohibition of "reformatio in peius" in the context of a continuing offence. This decision is of fundamental importance for understanding procedural dynamics on appeal and the implications for sentencing, touching upon crucial aspects for defendants and legal professionals.

The Principle of Reformatio in Peius: A Pillar of Criminal Procedure

The prohibition of "reformatio in peius" is a cornerstone principle of our criminal procedure system, enshrined in Article 597, paragraph 3, of the Code of Criminal Procedure. It establishes that the appellate judge, in the event of an appeal filed solely by the defendant, cannot impose a more severe penalty in terms of type or quantity, nor apply a new or more severe security measure, nor revoke benefits. The objective is to protect the defendant's right to defence, ensuring they can appeal a sentence without the fear of their position being worsened. However, like any principle, this one also has nuances and exceptions, such as those highlighted by the ruling in question.

The Continuing Offence and Sentencing

At the heart of the discussion is the concept of a continuing offence, governed by Article 81, paragraph 2, of the Criminal Code. A continuing offence occurs when multiple violations of criminal law are committed in execution of the same criminal design. In such cases, the penalty is determined starting from the sanction provided for the most serious offence (base penalty) and increasing it up to three times, but not exceeding twenty years for felonies and five years for misdemeanours (Article 78 of the Criminal Code). The complex interaction between the base penalty, the increases for satellite offences, and the statutory limits makes the quantification of the sanction a delicate operation, susceptible to different interpretations, especially during the appeal phase.

The Maxim of Ruling 8872/2025 and Its Meaning

In the context of a continuing offence, the decision of the appellate judge who, following an appeal filed solely by the defendant, excludes a special-effect aggravating circumstance without applying the corresponding reduction in penalty, does not violate the prohibition of "reformatio in peius" if the base penalty for the most serious offence was determined at the minimum statutory limit and, furthermore, individual increases in penalty for each satellite offence were applied, which were not accounted for in the first instance in order to comply with the limit set forth in Article 78 of the Criminal Code.

This maxim from the Court of Cassation clarifies a crucial aspect: the exclusion of an aggravating circumstance on appeal does not always result in a reduction of the penalty. The Supreme Court's ruling, in the case of the defendant B. B., rejected the appeal against the decision of the Court of Appeal of Lecce dated 10/04/2024. The Court of Cassation held that there was no violation of the prohibition of "reformatio in peius" because specific conditions were met. Let's examine them in detail:

• The appeal was filed solely by the defendant, a necessary condition for the application of the prohibition.
• The appellate judge had excluded a special-effect aggravating circumstance. Normally, the exclusion of an aggravating circumstance should lead to a lower penalty.
• However, the base penalty for the most serious offence had already been determined at the minimum statutory limit. This means there was no room for a further reduction of the "base" penalty.
• Furthermore, the increases in penalty for the satellite offences (the lesser ones within the continuing offence) had not been fully accounted for in the first instance, due to compliance with the maximum limit imposed by Article 78 of the Criminal Code.

In practice, the first-instance judge had already applied the penalty in the mildest possible measure, taking into account the legal limits. The exclusion of the aggravating circumstance on appeal did not allow for an effective reduction of the overall penalty because, even without the aggravating circumstance, the penalty was already at the minimum or limited by other provisions. This is not a "worsening" of the defendant's situation, but rather a correct application of the penalty calculation rules, which did not allow for further reductions. The ruling emphasizes that "reformatio in peius" must be assessed not only on the mere numerical decrease or increase but on the substance of the defendant's position in relation to legal limits and the possibilities of modulating the penalty.

Conclusions and Practical Implications

Ruling No. 8872/2025 of the Court of Cassation offers a valuable compass for navigating the complex dynamics of criminal law, particularly concerning continuing offences and the principles governing appeals. It reiterates that the prohibition of "reformatio in peius" is not a mechanical application but requires a thorough analysis of the penalty calculation methods. For legal professionals, it is essential to consider that, in the presence of a base penalty already at the minimum statutory limit and increases for satellite offences limited by Article 78 of the Criminal Code, the exclusion of an aggravating circumstance may not translate into a further reduction of the overall penalty. This ruling consolidates jurisprudence on the matter, providing greater clarity on a technical but highly relevant practical aspect for the protection of the defendant's rights and the correct application of criminal law.