Commentary on Judgment No. 22658 of 2023: Prosecutability of Criminal Action and the Complaint

The recent judgment No. 22658 of May 10, 2023, by the Court of Cassation offers significant insights into the issue of prosecutability of offenses requiring a complaint, especially in light of the amendments introduced by Legislative Decree No. 150 of October 10, 2022. The Court established that, in the absence of a complaint, the appellate court must annul the appealed judgment without referral, thus highlighting the importance of such an act for the continuation of criminal proceedings.

The Regulatory Framework and Recent Amendments

The judgment under review is part of an evolving regulatory framework, where various offenses have become prosecutable upon a complaint, effectively altering the conditions for the prosecutability of criminal action. Article 2 of Legislative Decree No. 150/2022 introduced these changes, which have a direct impact on the management of criminal proceedings. In particular, Article 85 of the same decree establishes the deadline for filing a complaint, the expiry of which leads to the non-prosecutability of the action.

The Ruling's Headnote

Cassation appeal - Offenses made prosecutable upon complaint following amendments under Article 2 of Legislative Decree of October 10, 2022, No. 150 - Expiry of the deadline for filing the complaint - Absence of the complaint in the case file - Consequences. In the case of a cassation appeal filed to assert the lack of a condition for prosecutability concerning an offense that has become prosecutable upon complaint following the entry into force of Legislative Decree of October 10, 2022, No. 150 (in this case, theft aggravated by the exposure of goods to public trust), if the appellate court does not find the presence of such an act, it must annul the appealed judgment without referral. (In a case where the deadline for filing the complaint under Article 85, paragraph 1 of the aforementioned Legislative Decree had expired, the Court highlighted that, as the public prosecutor bears the burden of alleging subsequent acts that document the continued prosecutability of the criminal action, in the absence of a precise regulatory pathway, the organizational models prepared by the Court of Cassation to avoid delays in the transmission of complaints by public prosecutor's offices represent exclusively an institutional scruple aimed at advancing the protection guaranteed by the legal system to offended persons with regard to the faculty of filing a complaint).

This headnote clarifies that, if a complaint is missing, the continuation of criminal proceedings cannot occur, emphasizing a fundamental aspect of criminal law: the will of the offended party is crucial for initiating prosecutability. The Court, therefore, reiterated the principle that a complaint is not merely a formal act but represents an essential condition for the exercise of criminal action.

Conclusions

In conclusion, judgment No. 22658 of 2023 highlights the importance of the complaint in the context of offenses requiring a complaint and the consequences of its absence. Recent legislative amendments have necessitated a careful examination of the condition for prosecutability, and the Court of Cassation has clarified its role in ensuring that criminal action can proceed only when all necessary acts are present. This approach not only protects the rights of offended parties but also improves the efficiency of the legal system.