Judgment no. 11929/2025: Cassation appeal admissible when prosecution by complaint subsequently arises

The decision of the Court of Cassation (Section 5, judgment no. 11929 of 26/02/2025, filed on 25/03/2025) addresses a procedural issue of growing importance: the admissibility of an appeal alleging inadmissibility due to lack of a complaint, when the requirement for prosecution by complaint was introduced after the contested judgment. The analysis is particularly significant in light of Legislative Decree 19 March 2024, no. 31, which amended the prosecution requirements for certain offenses.

The ruling's maxim and its meaning

In matters of legitimacy proceedings, an appeal that raises, with a single ground, the issue of inadmissibility due to lack of a complaint for a crime for which such prosecution requirement was introduced after the contested judgment is admissible. (Case concerning the crime of damage to property exposed to public faith, which became prosecutable at the initiative of the party as a result of art. 1, paragraph 1, letter b), Legislative Decree 19 March 2024, no. 31).

With this maxim, the Court establishes a procedural principle: the new regulation making a crime prosecutable only upon complaint, introduced after the contested ruling, can legitimize a Cassation appeal based solely on the absence of a complaint. Consequently, the modification of the prosecution requirement affects the legitimacy to proceed even at the legitimacy stage.

Regulatory framework and jurisprudential references

The decision is part of recent regulatory changes: Legislative Decree 19/03/2024 no. 31 has introduced, for certain offenses (e.g., art. 635 of the Criminal Code, paragraph 2, letter 1) – damage to property exposed to public faith), the requirement of prosecution by complaint. The Court also refers to provisions of the Criminal Code and the Code of Criminal Procedure, as well as previous maxims (including nos. 26418 and 37745 of 2024), consolidating a trend that recognizes the relevance of the subsequent emergence of a cause for non-punishability or inadmissibility.

Practical implications for defense and prosecution

The ruling has concrete effects on defense strategy and prosecution activities:

• The defense can file a Cassation appeal based solely on the subsequent inadmissibility due to lack of a complaint, even if the regulatory amendment occurred after the contested judgment.
• The public prosecutor must assess the potential absence of a complaint and the consequent inadmissibility already at the appeal stage if the new regulation is applicable.
• Possible increase in cases where the proceedings are terminated or annulled without referral due to a subsequent cause of inadmissibility.

In practical terms, it is crucial to verify the effective date of legislative amendments and their retroactivity: the Court here allows the new prosecution requirement to affect the legitimacy judgment, in defense of the principle of legality and the legislator's renewed choice to protect certain interests only upon the initiative of the injured party.

Conclusions

Judgment no. 11929/2025 clarifies that the subsequent introduction of prosecution by complaint can justify a Cassation appeal whose sole ground is inadmissibility due to lack of a complaint. For legal professionals, this serves as a warning to reconsider appeals and procedural assessments in light of legislative changes. Parties and their lawyers must pay attention to new offenses prosecutable by complaint and the potential termination of proceedings when a complaint is not filed.

President: M. G. R. A.; Rapporteur: A. F.; Reporting Judge: A. F.; Defendant: B. P. M. C. F.