The Conflict Between the Operative Part and the Reasoning in Remand Proceedings: The Court of Cassation and Judgment No. 30311/2025

In the labyrinth of criminal proceedings, consistency between a judge's final decision (the "operative part" or "dispositivo") and the reasons supporting it (the "reasoning" or "motivazione") is an essential requirement for legal certainty. However, in complex procedural stages such as remand proceedings, discrepancies can arise. The Court of Cassation, with judgment No. 30311, filed on September 5, 2025, has provided fundamental clarification on how to address such situations, establishing precise boundaries for complaints of such a delicate flaw.

Remand Proceedings and the Case of Judgment 30311/2025

Remand proceedings are initiated when the Court of Cassation quashes, even partially, a judgment on the merits and remands the case to another judge for a new decision, bound by the legal principles established by the Supreme Court. The specific case concerned the defendant M. P.M. M. P., involved in proceedings for drug-related offenses. The Court of Cassation had quashed with remand the appeal judgment of the Court of Rome, limited to the "denial of legal reclassification of the act as minor drug dealing."

The issue arose because, while the operative part of the judgment quashing with remand confirmed the defendant's responsibility for the entire quantity of narcotics intended for sale, the reasoning suggested as "plausible that part of it was intended for personal use." This clear contradiction prompted the defense to complain about such a conflict in the remand proceedings. But was this the appropriate forum?

The Supreme Court and the Inadmissibility of Conflict Between Operative Part and Reasoning

The Court of Cassation, rejecting the ground of appeal, clarified that such a flaw cannot be raised in remand proceedings. The principle is crystallized in the following maxim:

In remand proceedings, following the partial quashing of the appeal judgment, the ground alleging a conflict between the operative part and the reasoning of the quashing judgment is inadmissible and can only be raised through an extraordinary appeal, pursuant to Article 625-bis of the Code of Criminal Procedure. (Case where, by the operative part of the quashing judgment, only the point of denial of legal reclassification of the act as minor drug dealing was quashed with remand, while confirming the defendant's responsibility for the entire quantity of narcotics subject to the charge being intended for sale, even though, in the reasoning, it was deemed plausible that part of it was intended for the holder's personal use).

The reason for this inadmissibility lies in the very nature of remand proceedings. The remand judge is tasked with adhering to the principles established by the Court of Cassation but does not have the power to review or correct intrinsic errors in the Supreme Court's judgment itself. A conflict between the operative part and the reasoning of the "quashing" judgment (that of the Court of Cassation which quashed) is a flaw pertaining to the judgment of legality, not to the decision on the merits subject to remand.

For the correction of such errors, our legal system provides a specific instrument:

• Extraordinary Appeal ex Art. 625-bis c.p.p.: This remedy is intended to rectify material or factual errors, or manifest conflicts between the operative part and the reasoning, present in the judgments of the Court of Cassation.
• Scope of Remand Proceedings (Art. 627 c.p.p.): This is limited to a new assessment of the points quashed, in compliance with the legal principle enunciated by the Court of Cassation.
• Nature of the Flaw: The conflict is an error in the judgment of legality, not a point to be re-examined on the merits by the remand judge.

The Importance of Extraordinary Appeal ex Art. 625-bis c.p.p.

Judgment No. 30311/2025 of the Court of Cassation underscores the importance of using the correct procedural instrument for each type of flaw. The extraordinary appeal ex Art. 625-bis c.p.p. is not an ordinary appeal but an exceptional remedy to ensure the clarity and consistency of the Supreme Court's rulings. Attempting to assert such a flaw in an inappropriate forum, such as remand proceedings, means precluding the possibility of obtaining a correction and risking the inadmissibility of one's request.

Conclusions: Procedural Clarity and Protection of Rights

Judgment No. 30311/2025 of the Court of Cassation serves as a clear warning on the importance of precision in choosing procedural instruments. By defining the boundaries between what can be raised in remand proceedings and what requires an extraordinary appeal, the Supreme Court contributes to strengthening legal certainty and the correct application of procedural rules. For lawyers and their clients, understanding these distinctions is crucial for effectively navigating the complexities of the judicial system and ensuring the full protection of their rights.