Prohibition of reformatio in peius and appeal agreement: commentary on criminal Cassation no. 14325/2025

With the decision in question, the Court of Cassation returns to a recurring theme: the interference between the appeal agreement pursuant to art. 599-bis c.p.p. and the prohibition of reformatio in peius governed by art. 597, paragraph 3, c.p.p. Ruling no. 14325 of 2025, issued by the First Section, offers operationally useful insights for lawyers and criminal law practitioners, establishing a legal principle destined to impact defensive strategy in appeals.

The regulatory context

The prohibition of reformatio in peius prevents that, in an appeal proceeding initiated solely by the defendant, the final decision is more unfavourable than that of the first instance. Art. 597, paragraph 3, c.p.p. defines its scope, while art. 599-bis c.p.p. governs the appeal agreement, an out-of-court procedure that allows parties to agree on the penalty within certain limits.

The issue raised before the Court concerns the legitimacy of an agreement which, while reducing the overall penalty, worsened the sanctioning treatment for one of the individual calculation steps, re-evaluating an aggravating circumstance (art. 416-bis.1 c.p.) that the first-instance judge had balanced with general mitigating circumstances in terms of equivalence.

The ruling and its meaning

In matters of appeals, a cassation appeal against a judgment issued following an appeal agreement is admissible, alleging a violation of the prohibition of "reformatio in peius" in the intermediate stages of the determination of the final penalty.

The Court states that the prohibition does not only operate on the final quantum but affects every segment of the penalty assessment. If, in the intermediate stages, there is an aggravation compared to the first-instance ruling not appealed by the Public Prosecutor, the defendant may appeal to the Court of Cassation, even if the overall agreement appears more favourable.

The facts of the case and the decision

In this case, the defendant S. S. had agreed to a reduced sentence on appeal. However, the new calculation provided for a specific increase for the mafia aggravating circumstance pursuant to art. 416-bis.1 c.p. The first-instance judge had instead offset it with general mitigating circumstances. The appellant complained precisely of this “micro-peius” within the calculation.

The Court upheld the ground, quashing with referral the judgment of the Court of Appeal of Catania of 18/01/2024. It referred to consistent precedents (Cass. 22487/2024) and distanced itself from the contrary orientation formed in 2019 and subsequently re-emerged (Cass. 22002/2019, 7399/2025), reaffirming a more protective principle.

Practical implications for the defence

• Attention to calculation details: before agreeing to a settlement, it is necessary to verify that no single step worsens the defendant's position.
• Drafting the appeal document: the defect must be precisely alleged, indicating the stage of the assessment where the violation occurs.
• Role of the Public Prosecutor: if the public prosecutor has not appealed the first-instance decision, any aggravation becomes inadmissible.
• Renegotiation prospects: after quashing with referral, the parties can re-negotiate the agreement so that it respects the prohibition.

The ruling consolidates the defendant's protection, pushing the Courts of Appeal to rigorous control over the correct application of the prohibition of reformatio in peius even in consensual proceedings.

Conclusions

Ruling no. 14325/2025 is part of an evolving framework of case law that aims to prevent evasions, even implicit ones, of the prohibition of reformatio in peius. The principle expressed strengthens the predictability of decisions and defendants' trust in preferential proceedings: those who agree to a settlement must be able to count on a treatment that does not worsen even one of the elements of the penalty compared to the pre-existing situation, unless the Public Prosecutor initiates an appeal. For defence lawyers and magistrates, this is an orientation to keep in mind in daily procedural practice.