The Assessment of Police Records for the Insignificance of the Offence: Analysis of Judgment 20123/2025

Article 131-bis of the Italian Criminal Code is a crucial tool for decongesting the judicial system, excluding punishability for offences of particular insignificance. However, its application can become complex, especially when the defendant's habitual behaviour needs to be assessed in the presence of police records. It is precisely on this delicate balance that the recent and significant ruling of the Court of Cassation, Judgment no. 20123 of May 29, 2025, intervenes. This decision provides essential clarifications on the assessment criteria, representing a fundamental reference point for a more protective application of criminal law.

Article 131-bis of the Criminal Code: Requirements and Challenges

Introduced in 2015, Article 131-bis of the Criminal Code allows for the exclusion of punishability for conduct that, despite constituting a crime, presents minimal harm. The key requirements include the insignificance of the damage or danger, the methods of conduct, and, crucially, the non-habitual nature of the behaviour. This latter aspect is often the most controversial. The rule aims to prevent the criminal system from being activated for minor offences, but it requires careful verification that the perpetrator is not a "habitual, professional, or tendency-based offender" and has not committed multiple offences of the same nature. The presence of police records, even those not resulting in final convictions, has often generated uncertainty about the possibility of granting the benefit, risking interpretations that violate the presumption of innocence.

Judgment 20123/2025: A Fundamental Principle for Justice

The Court of Cassation, with Judgment no. 20123 of May 29, 2025 (President R. M., Rapporteur S. P.), addressed the case of the defendant J. S., for whom the Court of Appeal of Rome had excluded the applicability of Article 131-bis based on police records and an arrest, without adequate verification. The Supreme Court quashed the decision with referral, establishing a clear and protective principle. We report the full summary:

In the context of excluding punishability for the particular insignificance of the act, police records against the defendant may be considered symptomatic of habitual offending, precluding the granting of the benefit, provided that the factual elements emerging from them are verified, along with any defence allegations – including those concerning the existence of grounds for justification or non-punishability of the conduct – and the outcomes of the reports, i.e., their potential registration in the crime news register and the initiation of criminal proceedings. (In application of the principle, the Court quashed the appealed judgment, which had considered previous sales reported by the buyer during the investigation phase, as well as a previous arrest, as indicative of habitual offending, without ascertaining whether the former, never even examined in adversarial proceedings, and the latter had led to other proceedings).

This ruling clarifies that the mere existence of police records is not sufficient to preclude the application of Article 131-bis of the Criminal Code. The Court requires a thorough and substantive verification, which goes beyond a mere formal reading of the notes. In particular, it is necessary to ascertain:

• The concrete factual elements that gave rise to the records.
• Any defence allegations, including grounds for justification or non-punishability.
• The outcome of the reports: whether they led to registration in the crime news register and the initiation of criminal proceedings.

The decision emphasizes the importance of adversarial proceedings and the need to critically assess all evidence, avoiding automatisms that could infringe upon the defendant's rights. This interpretation strengthens the protection of due process and the presumption of innocence.

Practical Implications and Legal References

This judgment has significant repercussions for judicial and defence activities. For judges, it entails a greater investigative burden, requiring a detailed analysis of the records. For lawyers, it offers a solid argument to contest the exclusion of the benefit based on inadequately verified records. The ruling aligns with consistent precedents (e.g., Cass. no. 10796/2021) and the orientation of the United Sections (Cass. Sez. Un. no. 13681/2016), consolidating a protective interpretation. The main legal references are Article 131-bis of the Criminal Code and Article 73, paragraph 5, of Presidential Decree 309/1990 (Consolidated Law on Narcotic Drugs), often cited in contexts of minor offences.

Conclusions: Towards Fairer and More Measured Justice

Judgment 20123/2025 of the Court of Cassation represents a significant step forward towards a more considered and protective application of Article 131-bis of the Criminal Code. By emphasizing the importance of a substantive verification of police records, the Court has reaffirmed that the mere existence of reports is not sufficient to deny non-punishability for the particular insignificance of the act. This approach promotes justice that investigates substance, ensuring that the benefits provided by law are accessible to those who are entitled to them, avoiding automatisms and protecting the presumption of innocence. An important reminder for all legal professionals, so that every decision is the result of careful and complete analysis, for the benefit of a fairer and more efficient judicial system.