Commentary on Judgment No. 1188 of 2024: Substitute Penalties and Defence's Burden

The recent judgment No. 1188 of November 22, 2024, published on January 10, 2025, has sparked a wide debate on substitute penalties for short custodial sentences. The Court of Appeal of Turin, presided over by Dr. G. V., has established a fundamental principle: the appellate judge cannot order the substitution of a custodial sentence "ex officio", if there has been no specific request from the defence in the appeal brief.

The Legal Context of the Judgment

The Court clarified that substitute penalties, as provided for by art. 20 bis of the Criminal Code, cannot be considered an automatic right. The provision of art. 597, paragraph 5, of the Code of Criminal Procedure, considers the conversion of a custodial sentence as an exception to the principle of devolution of the appeal. This means that the request for substitution must be well-reasoned and supported by specific arguments from the defence.

• The judge is not obliged to assess substitute penalties ex officio.
• It is the appellant's burden to make a clear and reasoned request.
• Failure to fulfil this burden leads to the inadmissibility of the request.

Analysis of the Judgment's Maxim

Substitute penalties for short custodial sentences - Applicability ex officio in appellate proceedings - Exclusion - Defence's burden to support the request with specific arguments - Failure to fulfil this burden - Consequences. In the matter of substitute penalties for short custodial sentences, the appellate judge cannot order the substitution "ex officio" if, in the appeal brief, a specific and reasoned request has not been made, as the conversion of the custodial sentence does not fall within the scope of benefits and reductions expressly indicated by art. 597, paragraph 5, of the Code of Criminal Procedure, which constitutes a derogating provision, of an exceptional nature, to the principle of devolution of the appeal. (In its reasoning, the Court also affirmed that it is the appellant's burden to support the request for substitution of short custodial sentences with specific arguments and that the failure to fulfil this burden results in the original inadmissibility of the request).

This passage clearly highlights that the appellate process should not be seen as an opportunity for generic concessions, but as a moment when the defence must present solid and detailed arguments. The Court's intention not to allow an extensive interpretation of the rules governing substitute penalties underscores the importance of precision and clarity in legal requests.

Conclusions

In summary, judgment No. 1188 of 2024 represents an important reminder of the defence's responsibility in the criminal proceedings. The need to formulate specific requests for substitute penalties not only clarifies the judge's role but also strengthens the rights of the parties involved. It is crucial for lawyers to be aware of this aspect to avoid compromising their chances of obtaining a penalty substitution at the appellate stage.