Restitution within the time limit and judge's lack of jurisdiction: analysis of Cass. pen. Order no. 13315/2025

The Supreme Court returns to address the delicate institution of restitution within the time limit for filing an appeal. With order no. 13315, filed on April 7, 2025, the V Criminal Section established that a judge who declares themselves incompetent cannot transmit the request to the competent judge but must declare it inadmissible. This is a significant clarification that impacts defense strategy and the safeguarding of the right to defense.

The relevant regulatory framework

The institution is governed by art. 175 of the Code of Criminal Procedure (c.p.p.), which allows the defendant to be reinstated within the time limits for an appeal not filed due to a cause not attributable to them. However, the mechanism for preservation of acts provided for by art. 568, paragraph 5, of the c.p.p. only applies to acts qualified by the code as "appeals". The order under review addresses the interference between these two provisions, drawing a clear line.

The Cassation Court's decision

In matters of restitution within the time limit for filing an appeal, the judge, if they deem themselves incompetent to decide on the request submitted to them, must declare it inadmissible, as the principle of preservation of acts referred to in art. 568, paragraph 5, of the Code of Criminal Procedure does not apply. According to this principle, an appeal filed with an incompetent judge must be transmitted by that judge to the competent one. This principle applies only to remedies qualified as appeals by the procedural code, which does not include the request for restitution within the time limit.

Comment: the Court clarifies that the request for restitution is not itself an act of appeal, but rather a prerequisite for filing one. Consequently, it does not benefit from the "rectification" mechanism provided for incorrectly directed appeals. The defense lawyer must therefore identify the functionally competent judge from the outset, under penalty of inadmissibility.

Why can the request become a "procedural trap"?

The ruling follows a consistent line of case law (see Cass. no. 29246/2013, no. 1206/2021, no. 33647/2022) that emphasizes the principle of the exhaustive enumeration of appeals. The risk for the defendant is concrete: an error regarding the competent judge will not be rectified ex officio.

• Functional jurisdiction: the request must be submitted to the judge of the "omitted appeal," i.e., the one who should have received the main appeal.
• Strict deadline: 30 days from the day the defendant had actual knowledge of the measure (art. 175, paragraph 4).
• Burden of proof: to demonstrate that the forfeiture is not attributable to the defendant.

Filing the request with the court that seems "closer" or "quicker" risks permanently prejudicing the right to appeal or to appeal to the Court of Cassation.

Aspects of European law

The decision appears compatible with art. 6 of the ECHR, which guarantees the right to an effective remedy but leaves to the States the definition of reasonable time limits and procedures. The ECtHR, in cases such as Hermi v. Italy, has deemed procedural formalities legitimate as long as they are proportionate. The burden of identifying the correct judge is not considered excessive, provided that legal assistance is effective.

Practical implications for defense lawyers

Order no. 13315/2025 requires caution:

• Verify jurisdiction ex ante, especially in proceedings where the supervisory judge, the execution judge, and the court of appeal overlap.
• Attach all useful elements to prove the cause not attributable to the defendant for the forfeiture.
• As a subordinate measure, prepare an immediate appeal to the competent judge if there are doubts, avoiding the risk of serial inadmissibility.

Conclusions

The order under review reiterates a key principle: restitution within the time limit, while serving the exercise of the right to defense, does not benefit from the "fast tracks" reserved for actual appeals. Technical precision therefore becomes essential. For the professional, the lesson is clear: a thorough understanding of jurisdictional mechanisms is the only antidote to inadmissibility. An apparently formal error can irrevocably close the door to any subsequent remedy.