Analysis of Judgment No. 27181 of 2024: Prosecutability by Complaint and Non-Prosecutability in Criminal Law

Judgment No. 27181 of February 21, 2024, filed on July 10 of the same year, represents an important reference point for understanding the innovations introduced by the Cartabia reform in the context of prosecutability by complaint. In particular, the case in question highlights how, in the absence of a complaint filed within the prescribed deadlines, the judge is obliged to declare the non-prosecutability of the crime, revealing the consequences of this regulation on crimes that have become prosecutable by complaint.

The Regulatory Context

Legislative Decree No. 150 of 2022 introduced significant changes in criminal prosecution matters, emphasizing the need for a complaint as a prerequisite for criminal action in certain cases. According to Article 85 of the aforementioned legislative decree, if the deadline for filing a complaint expires without it being submitted, the crime is considered non-prosecutable. This amendment aims to limit criminal actions in situations where there is no direct interest from the victim, responding to a need for greater efficiency in the judicial system.

The Principle of Non-Prosecutability

Prosecutability by complaint as a result of the amendment introduced by Legislative Decree No. 150 of 2022 (so-called Cartabia reform) - Expiration of the deadline for filing a complaint pursuant to Article 85 of the aforementioned legislative decree - Obligation of immediate declaration of non-prosecutability pursuant to Article 129 of the Code of Criminal Procedure - Existence - Supplementary charge of an aggravating circumstance pursuant to Article 517 of the Code of Criminal Procedure - Possibility - Exclusion - Abuse of process - Factual situation. In the matter of crimes that have become prosecutable by complaint as a result of the amendment introduced by Legislative Decree No. 150 of October 10, 2022, the trial judge, if the deadline set forth in Article 85 of the aforementioned legislative decree has expired without a complaint being filed, following the establishment of the adversarial principle and the admission of evidence, is required to issue a judgment of non-prosecutability pursuant to Article 129 of the Code of Criminal Procedure. The charge of an aggravating circumstance aimed solely at making the crime prosecutable ex officio is ineffective, as it indicates an abuse of process by the public prosecutor. (Factual situation relating to the theft of electricity).

The judge, therefore, has no discretion in deciding: if the deadline for the complaint has expired and it has not been filed, they must necessarily declare the non-prosecutability of the criminal action. This position has been confirmed by the Court of Cassation, which has emphasized how the charge of an aggravating circumstance by the public prosecutor, aimed at making the crime prosecutable ex officio, can be considered an abuse of process.

Conclusions

This judgment represents an important step in strengthening the principle of legality and respect for the rights of the parties in criminal proceedings. The Cartabia reform, through these provisions, intends to reduce the workload of the courts and ensure that criminal actions are initiated only in the presence of an effective interest from the aggrieved party. The obligation to declare non-prosecutability in the absence of a complaint clarifies the boundaries of criminal action, promoting a fairer justice system that is less subject to abuse.