Commentary on Judgment No. 49499 of 2023: Prosecutability upon Complaint and Inadmissibility of Appeals

Judgment No. 49499 of November 15, 2023, published on December 13, 2023, has sparked an interesting debate among legal professionals regarding the issue of prosecutability upon complaint and its impact on the inadmissibility of appeals in cassation proceedings. In this article, we will analyze the key points of this decision by the Court of Cassation, seeking to make the legal implications understandable for citizens and lawyers.

The Regulatory Framework

The central issue of the judgment concerns the application of Article 2 of Legislative Decree No. 150 of 2022, which has modified the prosecutability of certain offenses, making them prosecutable upon complaint. This regulatory change has raised questions about how such a modification would interface with appeals already pending before the Court of Cassation. According to the Court, the subsequent introduction of prosecutability upon complaint cannot be considered an "abolitio criminis" and does not affect the declaration of inadmissibility of an appeal.

Analysis of the Judgment

Judgment of Legitimacy - Inadmissible Appeal - Offense Becoming Prosecutable upon Complaint ex Art. 2 Legislative Decree No. 150 of 2022 - Lack of Complaint - Non-Prosecutability - Prevalence over Declaration of Inadmissibility - Exclusion - Reasons - Case Law. In pending cassation proceedings, the subsequent introduction of prosecutability upon complaint due to the entry into force of Legislative Decree October 10, 2022, No. 150, does not operate as an "abolitio criminis," capable of prevailing over the inadmissibility of the appeal and affecting the so-called substantial res judicata. (Case concerning attempted theft aggravated by the use of violence against property, in which the Court deemed inadmissible the appeal that sought consideration of the lack of a complaint in relation to offenses for which this form of prosecutability had been introduced, subsequent to the appealed judgment and while the appeal was pending, by Legislative Decree October 10, 2022, No. 150).

The Court ruled that, in the specific case, the appeal was declared inadmissible precisely because the complaint, an essential element for the prosecutability of the offense, had not been filed. This clarifies that the regulatory modification does not have retroactive effect in favor of those who have already filed an appeal with the Court of Cassation, thus maintaining a clear distinction between the new legislation and the judgment of legitimacy.

Conclusions

Judgment No. 49499 represents an important reference point for understanding the new regulations on prosecutability upon complaint. It clearly establishes that the changes introduced by Legislative Decree No. 150 of 2022 cannot affect pending proceedings, emphasizing the importance of a complaint as an indispensable prerequisite for prosecutability. This aspect is crucial for lawyers and their clients, as it highlights the need to act promptly in compliance with the new rules and to file complaints in a timely manner to avoid the non-prosecutability of offenses. Therefore, the decision of the Court of Cassation provides valuable guidance for managing similar legal situations in the future.