Substitute Penalties on Appeal: What Cassation Ruling No. 14168/2025 Teaches About the Burden of a Reasoned Request

The recent ruling by the Court of Cassation, Criminal Section II, No. 14168, filed on April 10, 2025, sheds new light on the delicate issue of substitute penalties for short custodial sentences. This matter, far from being merely technical, concretely impacts defense strategy and the scope for reforming judgments in the second instance. Let's see why.

Reference Legal Framework

With the Cartabia reform (Legislative Decree 150/2022), a comprehensive framework for substitute penalties was introduced (Art. 20-bis of the Criminal Code). However, the request for substitution on appeal continues to grapple with the devolution principle and the exceptional rule under Art. 597, paragraph 5, of the Code of Criminal Procedure, which allows the judge to grant certain benefits even without a specific challenge. This is precisely where the issue addressed by the Cassation Court arises.

The Ruling's Maxim

In matters of substitute penalties for short custodial sentences, the appellate judge cannot order the substitution ex officio if a specific and reasoned request has not been made in the appeal document, as the conversion of a custodial sentence does not fall within the scope of benefits and reductions expressly listed in Art. 597, paragraph 5, of the Code of Criminal Procedure, which constitutes a derogating provision, of an exceptional nature, to the devolution principle of 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 failure to meet this burden results in the original inadmissibility of the request).

The Court thus reiterates that substitution is not among the "automatic benefits" (like conditional suspension) and cannot be ordered ex officio. The second-instance judge, even if considering the alternative measure abstractly admissible, must halt in the face of the defense's silence.

Burden of Defense: What is Truly Needed?

The ruling identifies two essential requirements:

• Express Request: The appeal document must contain the request for substitution, listing it among the grounds pursuant to Art. 581, paragraph 1, letter d), of the Code of Criminal Procedure.
• Specific Arguments: It is necessary to argue the compatibility of the substitute penalty with the legal conditions (personality, resocialization, duration ≤ 4 years, etc.).

Without these elements, the request is "originally inadmissible" and, as the Court recalls, cannot be "cured" during the proceedings. The practical consequence? The defense lawyer risks precluding their client from accessing less punitive measures, such as semi-liberty or community service.

Comparison with Previous Case Law

The principle reaffirms an already expressed orientation (Cass. No. 1188/2025) but contrasts with less restrictive decisions (see Cass. No. 15129/2024) that had emphasized the judge's discretionary power. Section II highlights the "exceptional" nature of Art. 597, para. 5, and urges against extending its scope beyond the cases expressly provided for.

Operational Implications for Criminal Lawyers

For lawyers, the lesson is clear:

• Carefully draft the appeal document, including a specific ground for this purpose.
• Attach documentation on the rehabilitation process or availability for community service.
• Refer to Art. 20-bis of the Criminal Code and Arts. 53-58 of Law 689/1981 to demonstrate the suitability of the measure.
• Monitor jurisprudential developments, as any interventions by the United Sections could redefine the scope of discretionary power.

Conclusions

Ruling No. 14168/2025 serves as a warning: the substitution of short custodial sentences is not an automatic "benefit." Only proactive defense, aware of procedural opportunities and attentive to substantive requirements, can transform an appeal into an occasion for real improvement of the sanctioning treatment. Ignoring the burden of request effectively means handing the judge the keys to reform with the locks firmly shut.