Criminal Cassation No. 10389/2025 and Art. 387-bis of the Italian Criminal Code: When Violation of a Protection Order is Not a Crime

Order No. 10389, filed on March 14, 2025, is of interest to all legal professionals dealing with criminal and civil protection against family abuse. The Court of Cassation, Sixth Criminal Section, clarifies the scope of application of the crime under Art. 387-bis of the Italian Criminal Code – in the version preceding Legislative Decree 31 October 2024, No. 164 – concerning violations of protection orders issued by the civil judge. This issue directly impacts the protection of minors and defense strategies in proceedings for mistreatment and stalking.

The Regulatory Context Before and After the Reform

Art. 387-bis of the Italian Criminal Code, introduced by Law No. 69/2019 (the so-called "Red Code"), punished the evasion of protection orders against family abuse provided for by Art. 342-ter of the Italian Civil Code. The amendment introduced by Legislative Decree 164/2024 – implementing EU Directive 2012/29 – has extended the scope of protection, expressly including orders in favor of minors and coordinating with the new unified civil procedure under Art. 473-bis.69 and 70 of the Italian Code of Civil Procedure.

• Until November 25, 2024: Art. 387-bis was applicable only to orders in favor of a spouse or cohabitant who was a victim of domestic violence.
• From November 26, 2024: Extension to minors and provision for specific aggravating circumstances.

The Legal Principle Affirmed by the Court of Cassation

Art. 387-bis, second paragraph, of the Criminal Code, in the part where – in its wording in force until November 25, 2024, preceding the amendment of Legislative Decree 31 October 2024, No. 164 – it punished the evasion of the protection order against family abuse provided for by Art. 342-ter, first paragraph, of the Civil Code, does not apply to conduct, prior to that date, of non-compliance with protection orders for the protection of the physical or moral integrity or the liberty of a minor, issued pursuant to that provision or, subsequently to its introduction, of Art. 473-bis.70 of the Code of Civil Procedure.

In summary, the Court excludes the criminal relevance – under Art. 387-bis of the Italian Criminal Code – of violations of protection orders issued in favor of minors before the reform came into force. The principle refers to Art. 15 of the Preliminary Provisions to the Civil Code: criminal law is not retroactive to the detriment of the accused. Therefore, conduct that was not considered a crime at the time of its commission cannot be criminalized. The decision also refers to the precedent of the United Sections No. 39005/2021, confirming its guarantor line.

Practical Consequences for Lawyers and Operators

The jurisprudential ruling has immediate effects:

• In pending proceedings for acts committed before November 25, 2024, the defense may request acquittal because the fact does not exist.
• Any violation of a protection order in favor of a minor remains prosecutable, but only for conduct subsequent to the reform.
• The possibility of contesting other crimes (e.g., domestic mistreatment, Art. 572 of the Italian Criminal Code) remains unaffected.

For those assisting the victim, it is therefore essential to assess the period during which the acts were committed and the exact qualification of the violated order; for the accused party, the ruling offers a primary defensive tool.

Conclusions

Judgment No. 10389/2025 confirms the constant attention of the Court of Cassation to the principle of legality and the non-retroactivity of criminal law. The legislator has expanded the forms of protection for minors, but criminal protection operates only ex nunc. Lawyers will need to navigate between criminal and civil procedural law to build effective strategies, remembering that the violation of a protection order, if committed before the reform in favor of a minor, does not constitute the crime under Art. 387-bis of the Italian Criminal Code, although recourse to other criminal offenses remains possible.