Judgment no. 9611/2025: the evaluative nature of the aggravating circumstance of public service in theft

The judgment of the Court of Cassation (Section 5) no. 9611 of 26/02/2025 revisits the issue of the aggravating circumstance provided for by art. 625, paragraph 1, letter 7, of the Criminal Code, which punishes the theft of items "intended for public service". The ruling, with annulment and referral to the Court of Salerno, clarifies point by point the limits of the description of the aggravating circumstance and the guarantees of the adversarial principle.

Facts, ruling, and legal references

In the case decided (defendant S. A., Public Prosecutor C. F.), the Court annulled the contested judgment with referral, emphasizing that the determination of the goods being intended for "public service" cannot be based on a merely descriptive assessment of the stolen object. The ruling refers to articles 624 and 625 of the Criminal Code and recalls previous case law (conforming and dissenting) that has dealt with its interpretative aspects.

Judgment's headnote and commentary

In matters of theft, the aggravating circumstance of the goods being stolen being intended for public service is evaluative in nature, as it requires a legal assessment of the nature of the "res", its specific purpose, and the concept of public service, the notion of which is variable as it is based on legal considerations not made evident by a mere reference to the stolen object. (In its reasoning, the Court specified that a "non-formal" contestation of the aforementioned circumstance is also permissible, provided that the defendant can defend themselves against the charge).

The headnote states that the aggravating circumstance is not purely factual but requires a legal examination: it is not enough for the object to appear typically linked to a public service; it is necessary to demonstrate its specific purpose and frame the concept of "public service". This means that the judge must provide reasoning for the legal reconstruction, avoiding automatic assumptions that draw proof solely from the material appearance of the item.

Practical implications for defense and prosecution

The decision has immediate effects on forensic and procedural practice:

• for the prosecution: the need to provide evidence demonstrating the intended purpose of the goods for public service and the relevant legal qualification;
• for the defense: the possibility of contesting the qualification without the contestation having to be strictly formal, as long as the defendant can fully exercise their right to defense;
• for the trial court judge: the obligation to provide reasoning for the assessment of the "res" and the concept of public service, referring to legal criteria and not just descriptive ones.

This is, in essence, a reminder of the principle of typicality and legality of the aggravating circumstance: the aggravated offense must be constructed with interpretative criteria and not inferred by mere appearance.

Jurisprudential relevance and coordination with supranational norms

The ruling fits into a line of case law from the Court of Cassation that has repeatedly emphasized the need for solid reasoning whenever the base offense is aggravated. On the level of fundamental rights, the European Court of Human Rights insists on the right to evidence and effective access to defense (cf. art. 6 ECHR): allowing "non-formal" contestations, provided they are effective, is consistent with these principles, preventing procedural technique from prejudicing the substance of the right to defense.

Conclusions

Judgment no. 9611/2025 reiterates that the aggravating circumstance for goods intended for public service is evaluative in nature and requires precise legal reasoning. For the prosecution, this entails the burden of proof to demonstrate the intended purpose and qualification; for the defense, the opportunity to raise objections even in an atypical form, as long as the possibility of a full response is protected. The decision confirms the trend in case law that favors the quality of reasoning and the guarantee of the adversarial principle in contesting aggravating circumstances.

President M. G. R. A., Rapporteur S. R., Reporting Judge S. R.