Sexual Violence Against Minors: Judicial Competence for Acts Prior to Law 69/2019 – Analysis of Judgment No. 21590 of 2025

Criminal law is a constantly evolving field, and issues of judicial competence can prove particularly complex, especially when intersecting with legislative amendments that increase penalties. An emblematic example of this complexity is offered by the recent Judgment No. 21590 of 2025 of the Court of Cassation, which has clarified a crucial point regarding sexual violence against minors under ten years of age. The ruling, filed on June 9, 2025, addresses the delicate question of which judicial body has jurisdiction to try acts committed before the entry into force of Law No. 69 of 2019, known as the "Red Code," which profoundly modified the penalty framework for these offenses.

The Regulatory Context: Art. 609-ter c.p. and Law 69/2019

Sexual violence, already a very serious crime in itself, takes on a connotation of particular social alarm and reprobation when the victim is a minor. Article 609-ter of the Criminal Code provides for a series of aggravating circumstances, including, in its last paragraph, the case where the act is committed to the detriment of a minor who has not yet reached the age of ten. This provision reflects the extreme vulnerability of very young victims and the consequent need for a more severe sanctioning response.

With the entry into force of Law July 19, 2019, No. 69 (the so-called "Red Code"), the legislator intended to further strengthen the protection of victims of domestic and gender-based violence, introducing, among other amendments, a significant increase in penalties for certain offenses, including aggravated sexual violence against minors. In particular, Article 13, paragraph 2, letter b), of Law No. 69/2019 raised the penalty framework, resulting in the procedural effect of shifting jurisdiction for these offenses from the Collegial Tribunal to the Court of Assizes, a judicial body traditionally responsible for the most serious crimes.

However, the question arose as to how to apply this new legislation to acts committed prior to the entry into force of Law No. 69/2019. This is where the Supreme Court intervenes, with the judgment under analysis, to resolve an interpretative conflict and establish which judge must rule in these specific cases.

The Cassation Ruling: The Substantive Value of the Norm

The Court of Cassation, with Judgment No. 21590 of 2025, presided over by Boni Monica and reported by Siani Vincenzo, examined the appeal concerning the defendant C., confirming the decision of the Court of Assizes of Milan on the issue of jurisdiction. The core of the decision lies in the interpretation of the nature of the amendments introduced by the "Red Code" for past acts. The Supreme Court affirmed that, although the penalty increase has an evident procedural impact (the shift in jurisdiction), it must be considered of essentially substantive value.

What does this qualification mean? In our legal system, the principle of non-retroactivity of the more unfavorable criminal law prevails, as established by Article 2 of the Criminal Code and Article 25 of the Constitution. This principle states that no one can be punished for an act that, according to a subsequent law, does not constitute a crime; and, if the law at the time the crime was committed and subsequent laws differ, the one whose provisions are more favorable to the offender shall apply. Although rules on jurisdiction are generally procedural in nature and subject to the principle of tempus regit actum (time governs the act, meaning the law in force at the time of judgment applies), the Cassation Court held that the penalty increase that determines the shift in jurisdiction cannot be applied retroactively. In other words, the procedural effect (the jurisdiction of the Court of Assizes) is strictly linked to the substantive effect (the penalty increase), and if the latter cannot be retroactive, neither can the former.

Therefore, for acts of aggravated sexual violence against a minor under ten years of age committed before the entry into force of Law No. 69 of 2019, jurisdiction remains attributed to the Collegial Tribunal, and not to the Court of Assizes. This interpretation had the merit of resolving a jurisprudential conflict, as evidenced by the "Previous Consistent Maxims" (No. 42465 of 2024) and "Divergent Maxims" (No. 28485 of 2024) cited in the judgment.

In the context of sexual violence, the court with subject-matter jurisdiction to try the aggravated offense under Article 609-ter, last paragraph, of the Criminal Code, committed to the detriment of a minor who has not reached the age of ten, is, for acts committed prior to the entry into force of the penalty increase provided for by Article 13, paragraph 2, letter b), of Law July 19, 2019, No. 69, the collegial tribunal, given that such provision, which for subsequent acts has resulted in the procedural effect of shifting jurisdiction to the court of assizes, must be attributed essentially substantive value.

This maxim crystallizes the principle enunciated by the Cassation Court. In simpler terms, the Court has established that, even though the 2019 law increased penalties for sexual violence against minors under ten years of age and, consequently, shifted jurisdiction to more severe courts (the Courts of Assizes), this change cannot apply to offenses committed before the law came into effect. The reason is that the penalty increase is a "substantive" modification (i.e., it concerns the punishment of the crime itself), and more severe criminal laws cannot be applied "backwards" (retroactively). Consequently, the effect on the court's jurisdiction, which derives directly from that penalty increase, cannot be retroactive either. This ensures that the defendant is tried according to the rules of jurisdiction that were in force at the time of the act, respecting the fundamental principles of our criminal law.

Practical Implications and Legal Protection

The Supreme Court's decision has several practical implications and reinforces some pillars of our legal system:

• Principle of Non-Retroactivity: It reiterates the importance of the principle of non-retroactivity of the more unfavorable criminal law, ensuring legal certainty for defendants.
• Jurisprudential Clarity: It puts an end to interpretative uncertainties that could lead to disparities in treatment and procedural delays.
• System Coherence: It maintains coherence between substantive norms (penalties) and procedural norms (jurisdiction), preventing a procedural effect from arising from a substantive norm that cannot be applied retroactively.

It is crucial to emphasize that this ruling in no way diminishes the seriousness of sexual violence against minors, nor the State's commitment to their repression and prevention. On the contrary, it ensures that the proceedings are conducted in full respect of constitutional guarantees and the cardinal principles of criminal law, ensuring fair and predictable justice, albeit with due severity.

Conclusions

Judgment No. 21590 of 2025 of the Court of Cassation represents an important clarification in a highly sensitive legal area. By affirming the jurisdiction of the Collegial Tribunal for aggravated sexual violence against minors under ten years of age committed before the entry into force of the "Red Code," the Supreme Court has balanced the need to repress abhorrent conduct with respect for the fundamental principles of criminal law, particularly the principle of non-retroactivity of the more unfavorable criminal law. This balance is essential for the legitimacy and credibility of the judicial system, ensuring that justice is not only effective but also fair and in accordance with constitutional dictates.