Continuing Offense and General Mitigating Circumstances: The Judge's Obligation to Provide Reasoning in Cassation Ruling No. 20912/2025

In the complex landscape of criminal law, the correct application of mitigating circumstances and the interpretation of continuing offenses are crucial nodes for determining penalties. The recent ruling by the Court of Cassation, Ruling No. 20912, filed on 05/06/2025, enters this debate, offering fundamental clarifications on the judge's obligation to provide reasoning regarding the recognition of general mitigating circumstances.

This ruling, presided over by A. G. and authored by A. M. A., partially annulling with referral a decision by the Court of Appeal of Milan dated 12/06/2024 concerning the defendant G. B., reiterates a cornerstone principle of our judicial system: the necessity of clear and precise reasoning for every decision affecting personal liberty and the quantification of penalties.

Continuing Offense and General Mitigating Circumstances: An Essential Overview

To fully grasp the scope of the Supreme Court's decision, it is useful to briefly review the concepts of continuing offense and general mitigating circumstances. A continuing offense, governed by Article 81, paragraph 2, of the Criminal Code, occurs when a person, through multiple actions or omissions, executing the same criminal design, commits multiple violations of the same or different legal provisions. In such cases, the penalty provided for the most serious offense is applied, increased up to threefold. This institution aims to sanction multiple conduct uniformly, but linked by a single criminal intent.

General mitigating circumstances, introduced by Article 62-bis of the Criminal Code, allow the judge to consider circumstances other than those specifically provided by law, if deemed suitable for justifying a reduction in penalty. They are an important tool for individualizing the sanctioning treatment, allowing the penalty to be adapted to the specific reality of the offender and the act, beyond typified circumstances.

Cassation Ruling No. 20912/2025: A Beacon on Reasoning

The central issue addressed by the Cassation Court concerns the possibility for the judge to recognize general mitigating circumstances for the so-called 'base offense' (the most serious one, on which the increase for continuation is calculated) but to deny them for the 'satellite offenses' (the other offenses that constitute the continuation). The Supreme Court, in the ruling under review, clarified that such differentiation is admissible, but with an indispensable condition: the obligation of adequate reasoning.

In matters of continuing offenses, the judge, even in the presence of subjective general mitigating circumstances recognized in relation to the base offense, may refrain from applying the relevant reductions with regard to the satellite offenses, provided, however, that in such a case, adequate reasoning is provided, by indicating the elements on which the decision is based.

This maxim is of fundamental importance. It does not preclude the judge from making a differentiated assessment, recognizing mitigating circumstances only for some of the offenses bound by the continuation. However, it places an insurmountable limit on such discretion: the need to explicitly state the reasons for this choice. An implicit denial or generic reasoning is not sufficient; the judge must specifically indicate which elements, relating to individual satellite offenses or the overall conduct, led them to deny the penalty reduction. This means that, even if the general mitigating circumstances are subjective (i.e., related to the defendant's person), the judge must assess whether the same subjective elements or other objective factors justify a different consideration for each criminal episode.

This interpretation aligns with the constitutional principles of a fair trial (Art. 111 of the Constitution) and the individualization of penalties (Art. 27 of the Constitution and Art. 133 of the Criminal Code), which require the judge to modulate the sanction based on the concrete gravity of the act and the defendant's personality. The decision of the Cassation Court, presided over by A. G. and authored by A. M. A., continues a line of previous case law (see, for example, rulings Rv. 272375-01 of 2018, Rv. 281562-01 of 2021, and Rv. 279107-02 of 2020) that already emphasized the importance of reasoning, but further strengthens its indispensable nature.

Practical Implications for Defense and Prosecution

The consequences of this ruling are significant for all legal professionals:

• For the defense: It will be crucial, during appeal or Cassation proceedings, to raise the issue of omitted or insufficient reasoning if the lower court judge recognized general mitigating circumstances only for the base offense without adequately explaining why they were not extended to the satellite offenses. This reinforces the need for a specific and reasoned request for the application of mitigating circumstances to all offenses.
• For the prosecution: The Public Prosecutor (in this specific case, R. P.) must be prepared to counter defense arguments, providing concrete justifications for differentiating the application of mitigating circumstances.
• For the judge: The burden of analytical and specific reasoning becomes even more stringent. The ruling mandates a careful assessment of the specificities of each individual criminal episode, even when part of a unified criminal design, to ensure maximum transparency and justice in determining the penalty.

This ruling contributes to making the penalty determination process more transparent and controllable, ensuring greater protection for the defendant and greater clarity for the legal system.

Conclusions

The ruling of the Court of Cassation No. 20912/2025 represents an important milestone in Italian criminal jurisprudence. It does not prevent the judge from modulating the application of general mitigating circumstances within a continuing offense, but it binds them to a rigorous obligation to provide reasoning. This means that any decision to deny a penalty reduction for satellite offenses, while recognizing it for the base offense, must be supported by logical arguments based on concrete evidence.

In a legal system that aims for legal certainty and the guarantee of fundamental rights, the obligation to provide reasoning is the cornerstone of any judicial measure. This ruling, therefore, strengthens confidence in justice, ensuring that every step in determining the penalty is the result of a considered and clearly articulated assessment, benefiting the protection of the defendant and the transparency of the entire criminal system.