The Probationary Period and the Limits of Retroactivity: Analysis of Cassation Sentence No. 28422 of 2025

Italian criminal justice is a complex, constantly evolving system that seeks a balance between the repression of crimes and the rehabilitation of the convicted. In this context, institutions such as the "suspension of proceedings with probation" play a fundamental role. A recent ruling by the Court of Cassation, Sentence No. 28422 of 2025, has addressed a crucial aspect related to this institution: the applicability of declarations of unconstitutionality to already finalized legal situations. Let's delve into the meaning of this decision and its practical implications.

Probation: An Opportunity for Reintegration into Society

Probation is an institution introduced into our legal system by Law No. 67 of 2014, primarily governed by Articles 168-bis et seq. of the Criminal Code and Articles 464-bis et seq. of the Code of Criminal Procedure. It allows defendants accused of minor offenses to request the suspension of criminal proceedings for a specified period, during which they must perform community service, undertake reparative activities, and adhere to a treatment program. If the probation is successful, the offense is declared extinguished, thus avoiding a conviction and its related criminal consequences. It is a mechanism aimed at rehabilitation and reintegration, offering a second chance to those who have made a mistake.

The Boundary Between Unconstitutionality and Final Judgment

The case examined by the Court of Cassation in Sentence No. 28422 of 2025 concerns a defendant, M. P. M. P. A., whose request for probation was rejected by the Court of Appeal of Milan. The core of the issue is the impact of a declaration of partial unconstitutionality of Article 517 of the Code of Criminal Procedure. This provision, prior to the intervention of the Constitutional Court, did not explicitly provide for the right of the defendant, who was charged with connected offenses, to request admission to probation with regard to all the offenses attributed to them, creating a potential disparity of treatment.

The Constitutional Court recognized this gap, extending the possibility of accessing probation even in the presence of multiple connected offenses. However, Sentence No. 28422 of 2025 clarifies a fundamental aspect: to what extent can a declaration of unconstitutionality have retroactive effect and alter legal situations that have already been finalized?

In the matter of suspension of proceedings with probation, the declaration of partial unconstitutionality of art. 517 of the Code of Criminal Procedure, in the part where it does not provide for the right of the defendant, who has been charged with connected offenses, to request admission to the same with regard to all the offenses attributed to them, finds its limit in concluded relationships, other than those of a substantive criminal nature, and therefore does not produce retroactive effects in cases where a judgment of acquittal has become final with regard to the offenses subject to supplementary charges.

This legal maxim is of crucial importance. The Court of Cassation, presided over by D. S. and with D. A. as rapporteur, states that the declaration of unconstitutionality, despite having a general retroactive effect, encounters an insurmountable limit: "concluded relationships." What does this mean? It means that if a legal situation has already been finalized by a judgment of acquittal that has become irrevocable (the so-called "res judicata"), the subsequent declaration of unconstitutionality of a norm cannot reopen or alter that relationship. In other words, legal certainty, guaranteed by the finality of judgments, prevails over the retroactivity of the declaration of unconstitutionality, at least in cases like the one examined, where it concerned offenses subject to supplementary charges for which a final acquittal had already been issued.

Practical Implications for Justice and the Defendant

The Cassation's decision has several practical implications:

• Legal Certainty: It reiterates the fundamental principle of legal certainty and the inviolability of res judicata. Once a judgment of acquittal is final, it cannot be challenged by subsequent legislative or jurisprudential interventions, unless it concerns matters strictly related to substantive criminal law (e.g., decriminalization).
• Limits of Retroactivity: It clarifies that the retroactivity of Constitutional Court judgments is not unlimited. Despite the erga omnes and retroactive nature of declarations of unconstitutionality, they cannot overturn legal situations that have already been finalized, especially if they are favorable to the defendant (such as a final acquittal).
• Defense Strategy: For lawyers and defendants, it is crucial to consider the procedural status of the case. If an offense has already been finalized by a judgment of acquittal, even if the relevant legislation is subsequently declared unconstitutional in a more favorable way, this may have no impact on the already closed case.
• Distinction Between Substantive and Procedural Law: The sentence highlights an important distinction between "substantive criminal relationships" and other concluded relationships. Matters of substantive criminal law (such as the abolition of an offense or the modification of a penalty) have broader retroactivity and can even influence judgments, but this is not the case for art. 517 of the Code of Criminal Procedure, which pertains to procedure.

Conclusions: Legal Certainty and the Function of Probation

Sentence No. 28422 of 2025 by the Court of Cassation offers an important clarification on the boundaries of the retroactivity of declarations of unconstitutionality, especially in relation to the institution of probation. It confirms that, while recognizing the importance of adapting norms to constitutional principles, the Italian legal system firmly protects legal certainty, particularly when it comes to final judgments of acquittal. This balance is essential to ensure the stability of the legal system and citizens' trust in justice. For the defendant M. P. M. P. A., the final acquittal for the offenses subject to supplementary charges represented a "concluded relationship" no longer modifiable by the subsequent constitutional ruling, reaffirming the solidity of criminal res judicata.