Judgment No. 14035 of 2024: Substitute Penalties and the Two-Phase 'Sentencing' Mechanism

Judgment No. 14035 of February 20, 2024, issued by the Court of Cassation, thoroughly analyzes the substitute penalties provided for by the Italian Criminal Code, with particular attention to the two-phase 'sentencing' mechanism introduced by Article 545-bis of the Code of Criminal Procedure. This ruling offers relevant food for thought for legal practitioners and defendants involved in criminal proceedings, clarifying the compatibility of substitute penalties with the appellate judgment.

The Two-Phase 'Sentencing' Mechanism

The two-phase mechanism referred to in Article 545-bis of the Code of Criminal Procedure allows for a more flexible and personalized application of substitute penalties. In particular, the judgment clarifies that this mechanism can also be activated after the appellate judgment, allowing the defendant to express their consent to the substitute penalty in a subsequent hearing. This represents an important recognition of the defendant's right to actively participate in the decision-making process regarding their conviction.

Substitute penalties pursuant to Article 20-bis of the Criminal Code - Two-phase 'sentencing' module pursuant to Article 545-bis of the Code of Criminal Procedure - Compatibility with appellate judgment - Existence - Conditions. Regarding substitute penalties, the two-phase mechanism referred to in Article 545-bis of the Code of Criminal Procedure can also operate following the appellate judgment, as the defendant not present at the reading of the operative part must be allowed to personally express, or by granting special power of attorney to their lawyer, their consent to the application of a substitute penalty other than a monetary one, where the conditions exist, in a subsequently scheduled hearing, with notice to the parties.

Implications of the Judgment

This ruling has significant consequences for the Italian criminal justice system, as it:

• Recognizes the defendant's right to actively participate in the choice of substitute penalty.
• Establishes that the assessment of the defendant's consent must be clear and formalized.
• Reiterates the importance of transparency in criminal proceedings, ensuring that all parties are informed and involved.

Furthermore, the judgment highlights the need for careful consideration of the conditions under which substitute penalties can be applied, emphasizing that the judge's discretion must be exercised in compliance with the fundamental rights of the defendant.

Conclusions

In summary, Judgment No. 14035 of 2024 represents a step forward in protecting the rights of defendants in criminal proceedings. The recognition of the compatibility between the two-phase 'sentencing' mechanism and the appellate judgment offers new perspectives for the application of substitute penalties, ensuring greater justice and fairness in the Italian judicial system.