Criminal Cassation, judgment no. 13573/2025: the accessory penalty of disqualification from public office in sexual offenses

With the decision filed on April 8, 2025, the Third Criminal Section of the Court of Cassation partially annulled, with referral, the ruling of the Court of Appeal of Reggio Calabria of May 14, 2024, against M. P.M. R. G., convicted of sexual violence under art. 609-bis of the Italian Criminal Code. The issue under scrutiny concerns the correct determination of the duration of the temporary disqualification from public office provided for by art. 609-nonies, paragraph 1, no. 4), of the Italian Criminal Code.

The legal principle affirmed

In matters of sexual offenses, the duration of the accessory penalty of temporary disqualification from public office, set by art. 609-nonies, first paragraph, no. 4), of the Criminal Code at five years, following a conviction to imprisonment between three and five years, must be determined in concreto by the judge, according to the criteria referred to in art. 133 of the Criminal Code, without regard to the duration of the principal penalty imposed under art. 37 of the Criminal Code.

The Court reiterates that disqualification is not an "automatic" sanction. Although art. 609-nonies establishes a maximum limit of five years, the choice of the concrete amount rests with the trial judge, who must provide reasons in light of the subjective and objective parameters listed in art. 133 of the Criminal Code (gravity of the act, methods of action, personality of the offender, etc.). The reference to art. 37 of the Criminal Code – which links the accessory penalty to the duration of the principal one – is therefore superseded for the offenses referred to in Title XII, Chapter I, in line with previous rulings such as Cass. Sez. Un. no. 28910/2019.

Criteria for individualizing the accessory penalty

Referring to art. 133 of the Criminal Code, the judge must evaluate, among others:

• the nature and motives of the behavior (e.g., abuse of authority, particular cruelty);
• the degree of offensiveness and the intensity of intent;
• the conduct subsequent to the act (remorse, compensation, collaboration);
• the criminal record and personality of the defendant;
• the living, family, and social conditions of the offender.

Only after this examination can the judge set the duration of the disqualification within the five-year limit, providing specific reasons. This avoids indiscriminate applications that would violate the principles of proportionality and individualization of the penalty enshrined in art. 27, paragraph 3, of the Italian Constitution and reiterated by the ECHR (art. 7).

Comparative insights and practical implications

The "tailor-made" approach indicated by the Court of Cassation is close to European models that favor flexible and targeted accessory penalties (see EU Directive 2011/99/EU on the European protection order). Decision no. 13573/2025 is relevant for:

• defenders: it allows challenging accessory penalties fixed automatically;
• public prosecutors: it requires them to justify the request for disqualification with specific reference to art. 133 of the Criminal Code;
• defendants: it offers grounds for appeal or cassation if the necessary reasoning is lacking.

Conclusions

The judgment under review reinforces the principle of proportionality of accessory penalties in sexual violence offenses, calling on trial judges to conduct a concrete and reasoned analysis, detached from the mere quantitative data of the imposed imprisonment. For criminal law professionals, the ruling represents a useful point of reference both in the defense phase and when adjusting the prosecution's punitive requests, guaranteeing a sanctioning system truly calibrated to the specifics of the concrete case.