Cassation Court on Offence Prosecutability: Aggravating Circumstances Can Override Complaint Deadline (Judgment No. 21003/2025)

Italian criminal justice is constantly evolving, and the recent Cartabia Reform (Legislative Decree No. 150 of 2022) has introduced significant changes, particularly regarding the prosecutability of offences. One of the most debated issues of great practical relevance concerns the possibility for the Public Prosecutor to allege an aggravating circumstance that renders an offence prosecutable ex officio, even when the deadline for filing a complaint, made mandatory by the reform, has expired. On this point, the Court of Cassation has intervened with Judgment No. 21003 of March 10, 2025 (filed on June 5, 2025), offering a fundamental clarification that deserves attention.

The Cartabia Reform and Offence Prosecutability

Legislative Decree No. 150 of 2022, known as the Cartabia Reform, aimed to streamline the judicial system by introducing, among other things, an expansion of cases requiring a complaint for a series of offences that were previously prosecutable ex officio. This change has had a significant impact, as the complaint, an act by which the victim expresses the will for criminal proceedings to be initiated against the perpetrator, must be filed within a peremptory deadline (generally three months from the date of knowledge of the fact constituting the offence, subject to exceptions). Failure to file the complaint within this deadline results in the non-prosecutability of the criminal action, with the consequent extinction of the offence.

The reform's objective was twofold: on the one hand, to decongest courts of cases involving offences of lesser social concern, entrusting the victim with the choice of whether or not to prosecute the perpetrator; on the other hand, to promote restorative justice mechanisms. However, this innovation has raised complex questions, especially in "borderline" situations where the legal qualification of the act or the presence of aggravating circumstances can alter the nature of prosecutability.

The Case at Hand and the Cassation Court's Decision

Judgment No. 21003/2025 of the Court of Cassation, presided over by Judge L. P. and with Judge M. B. as rapporteur, addresses precisely one of these scenarios. The case involved the defendant V. P. and concerned proceedings annulled with referral by the Court of Appeal of Palermo. The central issue was whether the Public Prosecutor (represented by Ms. M. F. L.) could validly allege an aggravating circumstance, thereby transforming an offence originally prosecutable upon complaint into an offence prosecutable ex officio, even after the deadline for filing the complaint had expired and, consequently, non-prosecutability had "virtually" occurred.

The Cassation Court provided a clear answer, consolidating an interpretative trend in a context that had also seen dissenting opinions. The Court established a fundamental principle for the correct application of the Cartabia Reform.

In matters of offences that have become prosecutable upon complaint due to the amendment introduced by Legislative Decree of October 10, 2022, No. 150, where the deadline provided for by Article 85 of the aforementioned Legislative Decree has passed without a complaint being filed, the public prosecutor is permitted to allege an aggravating circumstance that renders the offence prosecutable ex officio, even if non-prosecutability has virtually occurred.

This ruling is of crucial importance. It means that, even if the offence, in its initial configuration and without aggravating circumstances, would have become non-prosecutable due to the lack of a complaint within the deadlines set by Article 85 of Legislative Decree No. 150/2022, the Public Prosecutor retains the faculty to amend the indictment. If the addition of an aggravating circumstance makes the offence no longer prosecutable solely upon complaint, but prosecutable ex officio (i.e., without the need for the victim's consent), such an allegation is legitimate. "Virtual" non-prosecutability does not prevent the Public Prosecutor from restoring ex officio prosecutability by introducing an element that changes its nature.

Practical Implications and Jurisprudential Debate

The Cassation Court's decision has a significant impact on procedural strategy for both the prosecution and the defence. For the Public Prosecutor, this judgment strengthens the possibility of adjusting the indictment in light of emerging evidence, even if this involves overcoming a condition of prosecutability that appears to have already lapsed. This reflects the need to ensure the full application of criminal law for acts that, due to their gravity (indicated by the aggravating circumstance), the legislator intended to keep within the scope of ex officio prosecutability.

For the defence, on the other hand, the judgment highlights the importance of carefully assessing the possible evolutions of the charges. The mere expiry of the complaint deadline does not offer an absolute guarantee of dismissal or non-prosecutability if aggravating circumstances can be alleged that alter the nature of prosecutability. It is therefore essential for lawyers to be prepared to face such changes during the proceedings, constantly monitoring the legal qualification of the act.

It is interesting to note that, as indicated by the "Previous Divergent Rulings" cited in the text of the judgment, the interpretation has not always been unanimous. This highlights the complexity of the matter and the need for a clarifying intervention by the Supreme Court. Judgment No. 21003/2025 therefore stands as a firm point in a debate that has animated case law at both lower and higher courts in recent years, following the entry into force of the Cartabia Reform.

In summary, the key points of this decision are:

• Prevalence of Aggravating Circumstances: The allegation of an aggravating circumstance that renders the offence prosecutable ex officio prevails over the condition of non-prosecutability resulting from the lack of a complaint.
• Public Prosecutor's Power: The Public Prosecutor retains the faculty to amend the indictment, even if this involves a change in prosecutability.
• "Virtual" Non-Prosecutability: Non-prosecutability that would have occurred due to the expiry of the complaint deadline is not definitive if an element (the aggravating circumstance) arises that alters the prosecutability regime.

Conclusions

Judgment No. 21003/2025 of the Cassation Court represents an important piece in the interpretative mosaic of the Cartabia Reform. It clarifies a crucial aspect of offence prosecutability, reiterating that justice, in the presence of elements that modify its gravity, can and must proceed, even by overcoming procedural obstacles that, in the absence of such elements, would be insurmountable. For legal professionals and citizens alike, a thorough understanding of these dynamics is essential for navigating the complex landscape of Italian criminal law with awareness.