Cassation Court Criminal Section 25185/2025: Can the Preliminary Investigation Judge Reclassify the Offense and Return the Case Files to the Public Prosecutor?

The Italian judicial system is a complex mechanism where each body has a well-defined role and specific powers. One of the most debated issues in criminal procedural law concerns the balance between the functions of the Public Prosecutor (PM) and those of the Judge for Preliminary Investigations (GIP), particularly when it comes to requests for dismissal. The Supreme Court of Cassation, with its recent judgment no. 25185 of 2025, has provided fundamental clarification on a crucial aspect: the possibility for the GIP to attribute a different legal qualification to the act and to return the case files to the PM. This decision, rendered by the 5th Criminal Section and presided over by Dr. R. P., with Dr. I. S. as rapporteur, fits within a consolidated line of case law but deserves careful analysis to understand its practical and theoretical implications.

The GIP's Power to Review Requests for Dismissal

Criminal proceedings begin with preliminary investigations, directed by the Public Prosecutor. At the end of this phase, the PM can file a request for indictment or, if they believe there are insufficient grounds to support the charges, a request for dismissal. This is where the GIP comes into play, whose role is not merely to ratify the PM's decision but to exercise a genuine power of review. Article 409 of the Code of Criminal Procedure (c.p.p.) outlines the possible determinations of the GIP regarding a request for dismissal, including the possibility of ordering the PM to file an indictment.

Judgment no. 25185 of 2025 addresses the question of whether the GIP's reclassification of the act, with the consequent return of the case files to the PM, can be considered an "abnormal" act. An abnormal act is a measure that, while formally falling within a judge's jurisdiction, falls outside any legal provision or causes an irreversible stalemate in the proceedings, rendering them de facto unjust or irrational. The Cassation Court has excluded this classification, thereby strengthening the GIP's role as a guarantor.

The Cassation Court's Maxim and Its Meaning

It is not abnormal, as it expresses the power of review over the legality of the exercise of criminal prosecution, for the judge for preliminary investigations, when presented with a request for dismissal, to attribute a different legal qualification to the act and return the case files to the public prosecutor for determinations within their competence.

This maxim, clear and concise, represents the core of the decision. The Court ruled that the GIP's action of reclassifying the act and returning the case files to the PM is not a procedural anomaly but a legitimate expression of their review power. But what does this mean exactly? It means that the GIP is not a mere "notary" of the PM's requests. If, in response to a request for dismissal, the GIP believes that the described facts constitute a different offense – perhaps more serious, or simply classifiable under a different legal definition – they have the authority to indicate this new qualification and ask the PM to re-evaluate their position. This mechanism ensures the correct application of criminal law and upholds the mandatory nature of criminal prosecution, as established by Article 112 of the Constitution.

The Cassation Court emphasizes that such a measure is functional to ensuring the legality of the exercise of criminal prosecution. In practice, the GIP ensures that the PM has correctly assessed the legal scope of the facts that emerged from the investigations. This prevents a dismissal from being issued for one offense when the facts might constitute another, potentially more serious or simply different, legal definition that would warrant further investigation or the exercise of criminal prosecution.

Regulatory and Jurisprudential Context

The Court's decision is part of a well-defined regulatory and jurisprudential framework. Article 112 of the Constitution imposes on the Public Prosecutor the obligation to exercise criminal prosecution when the conditions are met. The GIP, when reviewing a request for dismissal, acts as a guarantor of this constitutional principle.

The options available to the GIP when faced with a request for dismissal, as provided for by Article 409 c.p.p., are multiple:

• Accept the request and order dismissal.
• Order new investigations, indicating to the PM those that are necessary.
• Order the PM to file an indictment.
• In the specific case, reclassify the act and return the case files to the PM for their determinations.

This interpretation is not isolated but is in line with previous rulings of the Supreme Court, including those of the United Sections, such as judgment no. 40984 of 2018 (Rv. 273581-01) and no. 10728 of 2022 (Rv. 282807-01), which have already addressed and clarified the limits and powers of the GIP in this delicate procedural phase. Judgment no. 20425 of 2021 (Rv. 281384-01) had also outlined a similar perspective, consolidating the jurisprudential trend.

Conclusions: A Strengthening of the GIP's Guarantor Role

Judgment no. 25185 of 2025 by the Court of Cassation, therefore, does not introduce a revolution but strongly reaffirms a fundamental principle of our legal system: the Judge for Preliminary Investigations has an active and guarantor role in the preliminary phase of criminal proceedings. Their power to legally reclassify an act and return the case files to the Public Prosecutor is not undue interference but a legitimate exercise of their review power over the legality and mandatory nature of criminal prosecution. This decision is of crucial importance for lawyers, magistrates, and legal professionals, as it further clarifies the boundaries of judicial action and ensures that justice can proceed in a manner more aligned with constitutional and procedural principles. Ultimately, it reinforces the idea of a GIP who is not passive but an attentive custodian of the correct application of the law from the very first stages of the proceedings.