Cassation no. 12675/2025: detention without title and continuous crime, when the penalty is not fungible

With judgment no. 12675 filed on April 2, 2025, the First Criminal Section of the Court of Cassation returns to a topic of great practical relevance: the calculation, pursuant to art. 657 c.p.p. (Code of Criminal Procedure), of the period of pre-trial detention suffered ab initio without a valid title. The case involved defendant F. A. and stemmed from an order by the GIP (Preliminary Investigations Judge) of Catania who had denied the deduction of a period of detention that later turned out to be illegitimate. The Supreme Court, reaffirming a now solid precedent, excluded the fungibility of this period with respect to the penalty imposed for a continuous crime (in this case, criminal association under art. 416-bis c.p.) whose duration continued beyond the period of detention without a title.

The procedural case and the question posed to the Cassation Court

The defendant's lawyer complained of a violation of art. 657, paragraph 4, c.p.p.: according to him, the unjust detention should have been deducted from the final penalty. The Court of Appeal, first, and the GIP, then, had rejected the request, arguing that the continuous crime had continued well beyond the period of illegitimate detention. Hence the appeal to the Cassation Court, based on an alleged conflict with articles 3 and 27 of the Italian Constitution regarding the proportionality of the penalty and rehabilitation.

The legal principle: art. 657 c.p.p. between fungibility and continuous crime

The Cassation Court clarifies again that the deduction under art. 657 c.p.p. is allowed only if the penalty to be served concerns facts prior to (or entirely coincident with) the detention without a title. When the crime is continuous, the conduct is characterized by a unitary nature and cannot be broken down into multiple instant crimes. This implies the impossibility of considering a "temporal fraction" of the crime prior to the detention, to be offset by the latter.

• Instantaneous crime or continuous crime interrupted before imprisonment: the time is deductible.
• Continuous crime still ongoing during or after illegitimate imprisonment: deduction excluded.
• Necessary chronological correspondence between the criminal act and the unjust deprivation of liberty.

In matters of execution, the period of detention suffered without a title cannot be deducted by fungibility from the penalty imposed for a continuous crime whose commission continued beyond said period, since, given the unitary structure of the continuous crime, it is not possible to break it down into a plurality of crimes, some prior and others subsequent to the execution of the detention that proved to be without a title.

Commentary: the maxim emphasizes the "unitary" nature of the continuous crime. Illegitimate detention can only compensate penalties relating to facts already concluded. If the offense continues, the legislator – and the Court – deny fungibility to prevent the perpetrator from gaining undue advantage from criminal conduct that he himself has prolonged. The principle protects the need for certainty of the penalty and prevents procedural stratagems aimed at eroding the sanction.

Constitutional and jurisprudential aspects

The Court refers to consistent case law (Cass. nn. 1436/1998, 40329/2013, 6072/2018) and rulings by the Constitutional Court which, assessing art. 657 c.p.p. in light of articles 3 and 27 of the Constitution, have considered the distinction between continuous and non-continuous crimes to be reasonable. In the supranational sphere, the ECHR allows for the compensation of unjust detention but leaves Member States room to modulate imputation criteria, provided they are not unreasonable or discriminatory.

Conclusions

Judgment no. 12675/2025 confirms that, for continuous crimes, pre-trial detention suffered without a title cannot be imputed to the penalty if the offense continues beyond that period. The defense lawyer, before filing a request under art. 657 c.p.p., must therefore verify:

• the moment of cessation of the crime's continuity;
• the temporal overlap with the illegitimate detention;
• the existence of any other convictions for already consummated acts.

In the absence of these conditions, the request will be rejected, as happened in the case at hand. The Firm remains available to evaluate specific cases and tailor the most appropriate defense strategies.