Missing Reasoning in First Instance Judgment: The Intervention of the Appellate Judge according to Judgment 23036/2025

In the complex and delicate landscape of criminal procedural law, the reasoning of judgments represents a fundamental pillar, a guarantee of transparency, legality, and protection for the defendant. But what happens when a first instance judgment is completely devoid of reasoning? Can the appellate judge remedy such a deficiency without depriving the defendant of a degree of judgment? The Court of Cassation, with Judgment No. 23036, filed on June 18, 2025, answers this complex question, offering essential clarification for legal practitioners and all those involved in procedural dynamics.

The Inviolable Value of Judicial Reasoning

Reasoning is the soul of a judgment. It is not a mere formal requirement but the expression of the logical-legal path that led the judge to the decision. Article 111 of the Italian Constitution enshrines the principle of a "fair trial," which imposes the obligation to provide reasoning for all judicial measures. In criminal proceedings, Article 546 of the Code of Criminal Procedure (c.p.p.) details the requirements for reasoning, which must include the exposition of facts, the evidence admitted, the analysis of factual and legal issues, and the reasons why the judge considers the charges proven or not. Without adequate reasoning, the judgment would be incomprehensible and unchallengeable, gravely infringing upon the defendant's right to defense and the possibility of effective review by the higher court.

Judgment 23036/2025: A Crucial Clarification

The case examined by the Court of Cassation, presided over by A. C. and with M. B. as rapporteur, concerned an appeal filed by the defendant M. G. against a decision of the Court of Appeal of Bologna. The central issue revolved around the possibility for the appellate judge to supplement reasoning that was entirely absent in the first instance judgment. The Court of Appeal of Bologna had, in fact, fully drafted the missing reasoning, leading the defense to object to the violation of the right to a double degree of judgment.

The Supreme Court, with ruling 23036/2025, declared the appeal inadmissible, reaffirming an already established but always debated orientation. Here is the relevant maxim:

The possibility for the appellate judge to remedy the absolute lack of reasoning in the first instance judgment, by preparing, based on their full powers of cognition and evaluation of the facts, even the entire missing reasoning, does not entail the deprivation for the defendant of a degree of judgment.

This maxim is of fundamental importance. It clarifies that the appellate judge, by virtue of their powers of full cognition and evaluation of the facts, can indeed prepare the missing reasoning, even in its entirety, without this constituting a violation of the defendant's right to a degree of judgment.