The Suspended Non-Commissioned Officer is Not Subject to Military Criminal Law: Analysis of Cassation Ruling 22066/2025

Military criminal law, with its specific regulations, is an area requiring constant interpretation. The Court of Cassation, with ruling no. 22066 of June 12, 2025, has provided a fundamental clarification regarding subjection to military criminal law for non-commissioned officers suspended from service. This decision, presided over by S. M. and authored by V. G., with defendant C. C., annuls the judgment of the Military Court of Appeal of Rome, delineating a clear and important boundary.

Who is "In Active Service"? The Heart of the Matter

The Military Criminal Code of Peace (CPMP), in articles 1, 3, and 5, establishes that military criminal law applies to "military personnel in active service." The ruling under examination addresses precisely the condition of a non-commissioned officer under disciplinary suspension: while retaining military status, their actual operational capacity ceases. The key question was whether this suspension was sufficient to exclude them from military jurisdiction, as they could no longer perform their active duties.

A non-commissioned officer suspended from service for disciplinary reasons is not subject to military criminal law, as they cannot be considered "in active service."

This maxim from Cassation ruling no. 22066/2025 clarifies definitively: disciplinary suspension prevents the non-commissioned officer from being considered "in active service." This means that, during this period, they are no longer subject to the specificities of military criminal law. The decision emphasizes that the application of a special criminal regime is strictly linked to the actual performance of duties and obligations arising from active military service, not merely status.

Jurisprudential Consistency and Reference Norms

The Cassation ruling aligns with established jurisprudence, as highlighted by the consistent maxim no. 51398 of 2016. This consistency strengthens legal certainty. Legislative Decree of March 15, 2010, no. 66 (Code of Military Organization), with articles such as 885, 1357 paragraph 1 letter A, and 920 paragraph 2, governs the status conditions of military personnel, including suspension. Although military status is not lost, suspension profoundly alters the functional relationship, limiting the exercise of duties. The objective is to apply the CPMP only when conduct affects the efficiency and discipline of the Armed Forces in a context of actual service.

• Disciplinary suspension excludes the qualification of "in active service."
• Military criminal jurisdiction requires full operational capacity.
• The ruling protects the suspended military personnel from an unjustified special regime.

Conclusions: A Fundamental Guarantee Principle

Ruling no. 22066/2025 of the Cassation Court is a cornerstone in the interpretation of military criminal law. By affirming that a suspended non-commissioned officer is no longer "in active service," the Supreme Court reinforces a crucial guarantee principle. This decision not only protects the individual rights of the military personnel, preventing them from facing a special criminal regime in the absence of an actual functional link to active service, but also contributes to more precisely defining the boundaries of military jurisdiction. An essential balance between discipline and principles of legality.