Substitute Penalties and the Court of Cassation: Commentary on Judgment No. 37022 of 2023

Judgment No. 37022 of June 28, 2023, by the Court of Cassation addresses a crucial issue in criminal law concerning the application of substitute penalties for short-term custodial sentences, particularly within the transitional framework introduced by Legislative Decree No. 150 of 2022. This ruling provides important clarifications on the procedure to be followed when requesting the substitution of a custodial sentence, in relation to the judgment of the Court of Appeal and pending proceedings before the Court of Cassation.

The Framework for Substitute Penalties

The Court of Cassation, in the judgment under review, establishes that the pronouncement of the judgment by the appellate judge determines the pendency of the proceedings before the Court of Cassation. This aspect is fundamental because, according to Article 95, paragraph 1, of Legislative Decree No. 150 of October 10, 2022, if the appellate judgment was rendered before December 30, 2022, a request for the substitution of the custodial sentence cannot be submitted to the Court of Cassation, even if the appeal was filed after that date. Therefore, the request must be made to the execution judge within thirty days of the judgment becoming final.

Consequences of the Judgment

The implications of this judgment are significant and warrant attention. In particular, the following considerations emerge:

• The necessity of adhering to the thirty-day deadline for submitting the request to the execution judge.
• Clarity on the inadmissibility of the request before the Court of Cassation, which may have caused confusion in the past.
• The strengthening of the transitional provisions, which aim to simplify the management of short-term custodial sentences.

Substitute penalties for short-term custodial sentences - Transitional provisions pursuant to art. 95 Legislative Decree no. 150 of 2022 - Proceedings pending before the Court of Cassation - Identification - Reference to the date of the appellate judgment - Consequences - Admissibility of the request before the execution judge. Regarding substitute penalties for short-term custodial sentences, for the application of the transitional provisions referred to in art. 95, paragraph 1, of Legislative Decree of October 10, 2022, no. 150, the pronouncement of the judgment by the appellate judge itself determines the pendency of the proceedings before the Court of Cassation. Therefore, if said judgment was rendered before December 30, 2022, the request for substitution of the custodial sentence cannot be submitted to the Court of Cassation, even if the appeal was filed after that date, but must be submitted to the execution judge within thirty days of the judgment becoming final.

Conclusion

In conclusion, judgment No. 37022 of 2023 represents a step forward in clarifying the legal framework concerning substitute penalties for short-term custodial sentences. It underscores the importance of respecting deadlines and following correct procedures to ensure the proper application of the law. Legal professionals and citizens must be aware of these provisions to avoid issues related to the management of short-term custodial sentences.