Failure to Contest Aggravating Circumstances: Analysis of the Criminal Cassation Court Ruling No. 15455/2024-2025

With decision No. 15455 of November 26, 2024 (filed April 18, 2025), the IV Criminal Section of the Court of Cassation, presided over by S. D. – rapporteur D. C., has revisited the issue of the failure to contest an aggravating circumstance, a crucial topic for the balance between the judge's powers and the defendant's guarantees. The case concerned the defendant L. S. A., convicted by the Court of Appeal of Bologna on January 19, 2024, with an appeal subsequently rejected by the Supreme Court.

The Principle Established by the Court

The judges of legitimacy established that if an aggravating circumstance is not expressly contested, the trial judge:

• cannot return the case files to the public prosecutor pursuant to art. 521 of the Code of Criminal Procedure (c.p.p.);
• cannot rule on the matter, even if the circumstance emerged from the case files;
• must limit themselves to assessing the base offense as formally contested, disregarding the aggravating circumstance (tamquam non esset).

This implies the impossibility of imposing a more severe penalty or declaring different periods of prescription compared to the simple offense.

In matters of circumstances, the judge, in the absence of a contested aggravating circumstance, cannot return the case files to the public prosecutor, as the statutory provisions relating to a different offense are inapplicable, nor can they deem a non-contested circumstance to exist based on the case files, as this is precluded by the provisions of art. 521, paragraph 1, of the Code of Criminal Procedure. Therefore, the judge must limit themselves to pronouncing a conviction for the untainted offense, as formally contested, with any un-contested aggravating circumstance being considered "tamquam non esset" and thus not subject to adversarial proceedings between the parties.

Comment: The maxim reiterates that the charge remains the inviolable perimeter of the prosecution. The judge is not free to redefine the indictment, nor can they fill investigative gaps with their own assessments. This protects the right to defense and adversarial proceedings, cornerstone principles of Article 111 of the Constitution and Article 6 of the ECHR.

Practical Implications for Prosecution and Defense

From an operational standpoint, the public prosecutor must pay particular attention to indicating every aggravating circumstance from the notice of conclusion of investigations onwards, being able to supplement it only within the limits of art. 516 c.p.p. before the closing of the trial. The defense attorney, on the other hand, may raise an objection for violation of the principle of correlation if the aggravating circumstance were to emerge ex post, obtaining the exclusion of its effects or the reclassification of the offense.

In the enforcement phase, any penalty imposed taking into account an un-contested aggravating circumstance may be redetermined, given the legal non-existence of such circumstance.

Comparison with Previous Case Law

The ruling aligns with the United Sections ruling No. 49935/2023, which had already affirmed the inviolability of the principle of correlation, and with subsequent rulings No. 43083/2024 and 4767/2025. The common thread is the prohibition for the judge to "supply" the prosecution's omissions, avoiding overlaps in roles between the prosecuting and judging magistracy.

At the European level, the ECtHR (see Drassich v. Italy, 2007) has repeatedly censured Italy for violating the fair trial when a defendant is convicted for facts not described in the original indictment. The Cassation Court, with this ruling, therefore appears to be in line with supranational standards.

Conclusions

Ruling No. 15455/2024-2025 reinforces the principle of procedural legality: if an aggravating circumstance is not contested, it simply does not exist in the proceedings. This serves as a warning to both the public prosecutor, who bears the burden of precision, and the judge, who must resist the temptation to "complete" the prosecution's case. For criminal defense lawyers, this is a valuable defensive tool, to be invoked to ensure a fair trial that respects the defendant's prerogatives.