Commentary on Judgment No. 35646 of 2023: Retroactivity of Amendments to the Code of Criminal Procedure

Judgment No. 35646 of 2023, issued by the Court of Cassation, offers an important reflection on the retroactivity of legislative amendments in criminal matters. With this decision, the Court established that the amendments made to Articles 405 and 408 of the Code of Criminal Procedure by Legislative Decree No. 150 of 2022 do not apply to proceedings already pending at the date of entry into force of the decree, where the public prosecutor had already registered the criminal offense in the register provided for by Article 335 of the Code. This clarification is fundamental to ensuring legal certainty and protecting the rights of the accused.

Regulatory Context and the Judgment

Legislative Decree No. 150 of 2022 introduced significant amendments to the Code of Criminal Procedure, particularly reforming the provisions relating to the dismissal and closure of preliminary investigations. The Court of Cassation, with the judgment in question, had to address the issue of the retroactivity of these amendments. In particular, the judges emphasized that the amendment of Articles 405 and 408 cannot be applied to ongoing proceedings, thus protecting the rights of the accused and the principle of legality.

Amendment of Articles 405 and 408 of the Code of Criminal Procedure by Legislative Decree No. 150 of 2022 - Retroactive application to ongoing proceedings - Exclusion. The amendments made by Articles 405 and 408 of the Code of Criminal Procedure by Article 22 of Legislative Decree No. 150 of October 10, 2022, do not apply to proceedings pending at the date of entry into force of the aforementioned Legislative Decree, in cases where the public prosecutor has already ordered the registration of the criminal offense in the register referred to in Article 335 of the Code of Criminal Procedure.

Implications of the Judgment

This judgment has profound implications not only for the specific case but for the criminal justice system as a whole. The Court reiterated the importance of a clear temporal delimitation of regulations, avoiding confusion and uncertainty in proceedings already initiated. Among the main consequences, we can list:

• Protection of the rights of the accused, ensuring that new rules cannot affect proceedings already underway.
• Reliability of the judicial system, as parties can count on the stability of the rules applicable to their cases.
• Clarity in the application of law, avoiding ambiguous interpretations that could compromise the fairness of trials.

Conclusions

Judgment No. 35646 of 2023 represents a significant benchmark for understanding legislative changes in criminal procedure. The Court of Cassation highlighted how retroactivity cannot be applied indiscriminately, thus protecting the rights of the accused and ensuring a fairer and more predictable legal system. This principle of non-retroactivity, in line with European norms and respect for human rights, is fundamental to maintaining citizens' trust in judicial institutions.