Prosecutory Acts and Ex Officio Prosecutability: The Clarity of the Court of Cassation in Ruling 25761/2025

The crime of persecutory acts, commonly known as stalking, represents one of the most insidious and widespread forms of violence, capable of profoundly undermining the serenity and freedom of victims. Its prosecutability, i.e., the condition for the State to prosecute the perpetrator, is a matter of fundamental importance, often subject to debate and jurisprudential clarifications. In this context, the recent ruling no. 25761 of May 14, 2025, by the Court of Cassation (filed on July 14, 2025) makes a significant contribution, more precisely outlining the cases in which the crime of stalking can be prosecuted ex officio, even without a complaint from the victim.

The ruling, presided over by Dr. G. De Amicis and reported by Dr. M. Ianniciello, rejected an appeal, confirming a decision by the Court of Freedom of Catanzaro. At the heart of the issue was the position of a defendant, C. P.M. M. C., and the interpretation of Article 612-bis, paragraph four, of the Criminal Code, which provides for ex officio prosecutability for persecutory acts when they are connected with another crime for which prosecution must be initiated ex officio. But what exactly does "connection" mean in this context?

The Nature of Prosecutability: Complaint or Ex Officio?

Normally, the crime of persecutory acts (Art. 612-bis of the Criminal Code) is prosecutable upon a complaint by the victim. This means that, barring exceptions, criminal proceedings can only be initiated if the victim formally requests the authorities to do so. This legislative choice responds to the desire to respect the victim's autonomy, allowing them to decide whether or not to undertake a judicial process, which is often burdensome and delicate.

However, Article 612-bis of the Criminal Code itself provides for exceptions to this general rule, including ex officio prosecutability when the crime is committed against a minor, a person with a disability, or when it is connected with another crime for which prosecution must be initiated ex officio. And it is precisely on this latter hypothesis that the ruling of the Court of Cassation offers important clarifications.

In the matter of persecutory acts, the connection that renders the crime prosecutable ex officio, pursuant to Article 612-bis, paragraph four, of the Criminal Code, is not only the procedural connection under Article 12 of the Code of Criminal Procedure, but also the material connection, which occurs when the investigation into the ex officio prosecutable crime necessarily involves the ascertainment of the crime punishable by complaint, in the presence of the evidentiary connection conditions referred to in Article 371, paragraph 2, of the Code of Criminal Procedure, provided that investigations into the ex officio prosecutable crime have actually been initiated. (Case in which the Court held that ex officio prosecutability of the crime of persecutory acts, connected to that of domestic mistreatment due to the ontological identity of the conduct, carried out to the detriment of the same victim, was correctly affirmed).

This maxim is the core of the decision and deserves careful analysis. The Court distinguishes between two types of connection: "procedural" and "material."

• Procedural connection (governed by Article 12 of the Code of Criminal Procedure) occurs when there is a link between two or more crimes that justifies their joint trial in a single proceeding (e.g., multiple individuals conspire in the same crime, or one crime is committed to execute or conceal another).
• Material connection, on the other hand, is more subtle and manifests when the ascertainment of an ex officio prosecutable crime necessarily implies the investigation and discovery of a crime prosecutable by complaint. This is not a mere temporal or contextual proximity, but a genuine evidentiary link, such as that provided for by Article 371, paragraph 2, of the Code of Criminal Procedure for investigations by the Public Prosecutor. In other words, one cannot investigate one crime without encountering the other.

A fundamental requirement is that investigations into the ex officio prosecutable crime have been "actually initiated." This prevents the mere theoretical possibility of a connection from circumventing the need for a complaint in the absence of concrete investigative impetus.

The Specific Case: Persecutory Acts and Domestic Mistreatment

The ruling in question provides a concrete and particularly relevant example: the connection between the crime of persecutory acts and that of domestic mistreatment (Art. 572 of the Criminal Code). The latter is a crime prosecutable ex officio and often intertwines with stalking conduct within family or affective relationships. The Court of Cassation held that "ex officio prosecutability of the crime of persecutory acts, connected to that of domestic mistreatment due to the ontological identity of the conduct, carried out to the detriment of the same victim, was correctly affirmed."

This passage is crucial. The "ontological identity of the conduct" means that the actions constituting persecutory acts are intrinsically linked and, in many cases, indistinguishable from those that constitute mistreatment. Consider a partner who, after physically or psychologically abusing their spouse (mistreatment), continues to harass them with calls, messages, or stakeouts (persecutory acts). Often, these behaviors are an expression of a single criminal design and aim to maintain control over the victim. The same victim further strengthens this link, emphasizing how the victim suffers a continuous series of aggressions to their freedom and integrity, both physical and psychological.

Jurisprudence has long recognized that in these contexts, ex officio prosecutability is essential to ensure full and effective protection for victims, who often find themselves in a vulnerable condition that makes it difficult or impossible to file a complaint.

Conclusions

Ruling 25761/2025 by the Court of Cassation represents an important piece in the mosaic of victim protection against violence. It clarifies that the connection between persecutory acts and other ex officio prosecutable crimes is not limited to procedural connection alone but extends to material connection, based on an indissoluble evidentiary link. This jurisprudential orientation, in line with previous consistent rulings (such as rulings 55807/2017 and 32787/2014), strengthens the protection network for those who suffer stalking, especially when it is part of domestic violence contexts, where ex officio prosecutability for mistreatment becomes the engine for prosecuting persecutory conduct as well. It is a significant step forward towards a justice system that is more sensitive and responsive to the complex dynamics of gender-based and intra-family violence, ensuring that the absence of a complaint does not become an insurmountable obstacle to ascertaining the truth and punishing the guilty, in defense of the freedom and dignity of the victim.