Commentary on Judgment No. 39205 of 2023: Nullity of Indictment Request and Deferred Repeal

Judgment No. 39205 of June 20, 2023, by the Court of Cassation, has sparked lively debate among jurists and legal practitioners. This decision addresses a relevant issue in the Italian legal landscape: the nullity of an indictment request in relation to the deferred repeal of a criminalizing provision. In this article, we will analyze the meaning of the judgment and its implications for the Italian criminal justice system.

Context of the Judgment

The central issue concerns the validity of an indictment request for offenses whose regulation is destined to be repealed at a future date. Specifically, the Court declared that the preliminary hearing judge's order, which had declared the indictment request null and void, was abnormal, as such nullity would have caused an undue standstill of the proceedings. This implies that the repeal of a provision does not affect the validity of the charging act if the offense is charged based on a provision in force at the time of the request.

Analysis of the Reference Headnote

Nullity of indictment request due to deferred repeal of a criminalizing provision - Return of case files to the public prosecutor - Abnormality - Existence - Factual case. The order by which the preliminary hearing judge declares the indictment request null and void for an offense whose repeal is scheduled for a future date, and orders the return of the case files to the public prosecutor for reformulation of the charge, is abnormal, as it causes an undue standstill of the proceedings. This is because the repeal is irrelevant for the validity of the charge contained in the indictment request, which was filed with regard to a provision that was in force and applicable at the time. (Factual case relating to the offense under Article 7, paragraphs 1 and 2, of Legislative Decree of January 28, 2019, No. 4, converted, with amendments, by Law of March 28, 2019, No. 26, which is scheduled for repeal effective January 1, 2024, pursuant to Article 1, paragraph 318, of Law of December 29, 2022, No. 197).

This headnote clarifies that the deferred repeal of a provision cannot be invoked to justify the nullity of an act based on a provision currently in force. The Court has therefore confirmed the importance of the stability of criminal proceedings, preventing regulatory uncertainties from compromising the right to defense and the proper administration of justice.

Practical Implications of the Judgment

The practical implications of this judgment are significant. Below, we highlight some key points:

• Procedural Stability: The judgment ensures that criminal proceedings cannot be halted due to future regulatory repeals.
• Legal Clarity: The decision promotes greater clarity and certainty in criminal law, preventing deferred repeals from generating confusion.
• Protection of Defendant's Rights: The right to be judged based on the provisions in force at the time of the charge is safeguarded.

Conclusions

Judgment No. 39205 of 2023 represents a significant step forward for Italian criminal law, clarifying the consequences of the deferred repeal of criminalizing provisions. It ensures that criminal proceedings can continue without undue interruption, thereby protecting the rights of defendants and the functionality of the judicial system. In an ever-evolving legal context, this decision provides important guidance for legal professionals, emphasizing the need for constant attention to current legislation and its implications.