Cassation Ruling No. 15220/2025: Powers of the Public Prosecutor after a Declaration of Territorial Incompetence

With decision No. 15220 of February 19, 2025 (filed April 17, 2025), the Fourth Criminal Section of the Court of Cassation – President S. D., Rapporteur and Author F. A. – annulled with referral the ruling of the Court of Assizes of Appeal of Naples of June 26, 2024. The case, which involved the Swiss entrepreneur S. S. E. as the defendant, offers an opportunity to reflect on the powers of the public prosecutor who "receives" the case files after a declaration of territorial incompetence pursuant to art. 23 of the Code of Criminal Procedure, particularly on the possibility of modifying the legal qualification of the act upon the new exercise of criminal action.

The Procedural Case and the Issue of Competence

The proceedings originated from an alleged case of negligent homicide (art. 589 of the Criminal Code) linked to asbestos fiber exposure. In the first instance, the competent judge subsequently declared territorial incompetence, transmitting the case files to the Public Prosecutor's Office deemed correct. The latter, in renewing the criminal action, reclassified the facts, charging, among other things, multiple negligent injuries (art. 590 of the Criminal Code). This choice was challenged on appeal by the defense, which argued for the nullity of the new request for committal to trial as it differed from the original one.

The Principle of Law Affirmed

In matters of territorial jurisdiction, the public prosecutor to whom the procedural files are transmitted following a ruling declaring incompetence is entitled, when exercising criminal action again, to qualify the facts differently from how they were presented in the judgment, as the decision on competence only has preclusive effects regarding the identification of the competent judge. (Case in which the Court excluded the alleged defect of nullity of the appellate decision, as a consequence of the nullity of the previous request for committal to trial, in a case where the public prosecutor, by renewing the criminal action, had attributed a different legal qualification to the facts).

The Supreme Court, referring to precedents No. 29196/2017, No. 39701/2009, and No. 41342/2006, reiterated that a ruling of incompetence produces effects "closed" solely to the identification of the judge, without crystallizing either the indictment or the exercise of criminal action. Consequently, the receiving Public Prosecutor can, with full autonomy, re-examine the files and formulate an indictment that is even qualitatively different, provided it respects the principle of legality and the right to defense (arts. 521, 522 of the Code of Criminal Procedure).

Practical Implications for Defense and Prosecution

The decision offers relevant operational insights:

• For the Public Prosecutor's Office: the possibility to rectify or expand the indictment in light of new evidence without fearing an objection of nullity.
• For the Defense: attention to any new charges; the usefulness of invoking the extended appearance period in case of a substantial modification of the charges.
• For the Judge: the duty to verify that the reclassification does not prejudice the adversarial principle and that the complaint of incompetence is not instrumental to "crystallizing" the indictment.

From a systematic perspective, the ruling harmonizes articles 22-23 of the Code of Criminal Procedure with article 521, paragraph 2, confirming the clear distinction between competence (which identifies the judge) and indictment (which remains at the discretion of the Public Prosecutor).

Conclusions

With ruling No. 15220/2025, the Court of Cassation definitively clarifies that the preclusive effect of a declaration of incompetence concerns only the choice of the judge, not the "form" of the accusation. This is a clarification of great practical importance: it avoids unnecessary procedural duplication and strengthens the principle of economy, while leaving the rights of the defense intact. Therefore, legal professionals – public prosecutors and lawyers – are called upon to calibrate their strategies and procedural-penal objections in light of this solid case law orientation.