A judgment of the criminal Court of Cassation may give the impression of closing every possibility of defense. As a rule, it closes ordinary means of appeal: there is no further appeal to ask another judge to freely review the case, the evidence, or the sentence. This, however, does not mean that every problem emerging after the decision necessarily remains without a remedy.
I want to clarify which tools can still come into play and, above all, what difference there is between an error by the Court, a genuinely new piece of evidence, a trial conducted in absentia, and a violation ascertained by the European Court of Human Rights. I will focus on criminal proceedings: understanding what is truly being contested is the first step in order not to use an unsuitable remedy or let an important deadline pass.
The judgment of the Court of Cassation is not a third judgment on the merits
The Court of Cassation primarily checks compliance with legal and procedural rules. It does not normally repeat the trial to establish from scratch which witness is more credible or which reconstruction of the facts is preferable. For this reason, a disagreement with the evaluation of evidence carried out in previous proceedings does not, by itself, become a ground to appeal the ruling of the Court of Cassation.
When the Court dismisses the appeal or declares it inadmissible, the challenged decision on the merits normally becomes irrevocable. If instead it annuls with referral, the proceeding continues before the judge indicated by the Court and the matter is not yet definitively concluded. The operative part of the judgment matters, namely the final part establishing whether the appeal is upheld, dismissed, declared inadmissible, or whether the files must return to another judge.
This distinction has a concrete consequence. If the Court of Cassation annuls with referral, the issue can still be discussed in the proceedings that resume within the limits set by the annulment judgment. If, on the other hand, the conviction has become final, it is necessary to identify an extraordinary remedy provided by law. It is not enough to call the new act an 'appeal': each tool has different prerequisites, recipients, and effects.
Material error or factual error: the extraordinary appeal
Article 625-bis of the code of criminal procedure allows a specific remedy in favor of the convicted person to correct a material or factual error contained in a ruling of the Court of Cassation. It does not serve to re-argue the merits, but to remedy an oversight that has affected the decision. The rule also provides for the initiative of the prosecutor general. Article 625-bis c.p.p. reported in law no. 103 of 2017.
A material error concerns, in simple terms, an objective inaccuracy in the drafting of the ruling: data transcribed incorrectly, a calculation inconsistency, or an indication that clearly does not correspond to what the Court has decided. The correction cannot rewrite the decision: if intervening requires a new legal or evidentiary evaluation, one is no longer dealing with a simple correction.
A factual error is more delicate. It may arise when the Court has based its decision on an inaccurate perception of the available files, for example treating as non-existent a document that is regularly present or considering a filing late which, according to official data, is timely. A contestable reading is not automatically an oversight. If the problem consists in the way the Court interpreted a rule, selected an argument, or evaluated a controversial issue, the extraordinary appeal does not become a tool to obtain a new judgment.
An application concerning a factual error must be filed within one hundred and eighty days of the ruling’s filing. For a clerical error, exceeding that period does not create the same bar; the Court may identify it of its own motion at any time. A factual error may be identified of the Court’s own motion within ninety days of deliberation. These are different dates and procedural initiatives, as explained in Article 625-bis of the Code of Criminal Procedure. The application does not automatically suspend the ruling: suspension may be ordered in exceptionally serious cases.
New evidence: review concerns the conviction, not a new Cassation
If after the finality of the conviction a new element emerges capable of calling responsibility into question, the remedy to consider is normally review. Review does not challenge the Court of Cassation as a subsequent degree: it targets the irrevocable conviction judgment and aims to remove it when the taxative hypotheses provided by the code occur.
Among the cases provided by Article 630 c.p.p. are, in summary, the incompatibility between facts ascertained in irrevocable criminal decisions, the incidence of a civil or administrative decision that has revoked the prerequisite of the conviction, the discovery of new evidence capable of imposing acquittal, and the ascertainment of falsity or other crimes that determined the conviction. The evidence must truly change the basis of the judgment, alone or together with what has already been acquired.
It is not sufficient to argue that already known evidence should have been evaluated differently. The Constitutional Court has explained that review cannot turn into a general control over the correctness of an irrevocable judgment: the new fact provided by law is required, not a different opinion on the material already examined. Judgment of the Constitutional Court no. 129 of 2008 on criminal review.
New evidence is not necessarily evidence that arose later. The application is made to the competent Court of Appeal. Pre-existing evidence that was not admitted in the earlier proceedings or was never assessed, even implicitly, may also be relevant within the limits established by case law. A request merely to reassess evidence already considered is insufficient. The principle is recalled in Cassation decision No. 9996 of 2025. The new element must be compared with the record and the reasons for conviction.
Trial conducted in absentia: when the rescission of final judgment can operate
A final conviction may require a different examination when the person was tried in absentia. Article 629-bis c.p.p. governs the rescission of final judgment: outside cases relating to a decision of the European Court, the convicted person or the person subjected to a security measure may request it if they prove that they were declared absent without the prerequisites required by law and that they were unable to appeal within the deadlines without their own fault. Physical absence alone is not enough.
The law excludes the remedy if it turns out that the interested party had effective knowledge of the pending trial prior to the judgment. Therefore, precise facts become decisive: the notifications carried out, any communications received, concrete knowledge of the proceeding, and the possibility to intervene or propose an appeal. The problem concerns the right to participate in the trial, not simple disagreement with the conviction pronounced in absentia.
The request must be submitted to the court of appeal of the district where the judge who issued the ruling is based, personally or through a defense counsel endowed with a special power of attorney, within thirty days from the actual knowledge of the judgment. If accepted, the court revokes the judgment and transmits the files to the judge of the phase or degree in which the nullity occurred. Rules of Article 629-bis c.p.p. in Legislative Decree no. 150 of 2022.
A decision of the European Court does not automatically erase the conviction
The violation of rights recognized by the European Convention may open a further path, but only in a very defined situation. Article 628-bis c.p.p. allows the convicted person or the person subjected to a security measure to ask the Court of Cassation to eliminate the prejudicial effects of the violation when the European Court has already upheld their appeal with a final decision, or when there has been a removal from the docket following the unilateral recognition of the violation by the State.
Therefore, it is not enough to consider the trial unfair or to abstractly invoke the European Convention. A European decision referring to the applicant's position and a concrete impact of the violation on the conviction or on the criminal decree of conviction are required. The request must specifically indicate the reasons for the remedy, be proposed personally through a defense counsel with a special power of attorney, and respect the ninety-day deadline from the finality of the European decision or the decision to remove it from the docket. The connection with the conviction must be concrete. Article 628-bis c.p.p. on remedies after a decision by the European Court.
If the Court of Cassation upholds the request, it can adopt the measure necessary to eliminate the prejudice: depending on the case, it can revoke the conviction, transmit the files to the enforcement judge, or order the reopening of the trial at the phase in which the violation occurred. The consequence is not predetermined, because it depends on the nature of the violation and what needs to be done to remove its effects.
How to distinguish the correct remedy before acting
The useful question is not merely "can I appeal the Court of Cassation?", but "what is the new fact or error that I want to assert?". An oversight in the acts of the Court of Cassation points towards Article 625-bis; new evidence regarding responsibility can lead to review; a conviction pronounced after an absence not complying with the rules can invoke the rescission of final judgment; a violation already ascertained in Strasbourg follows the path of Article 628-bis.
Confusing these levels can have serious effects. Presenting as a factual error what is a different evaluation of evidence exposes one to the risk of inadmissibility; waiting to delve into an absence matter can instead affect the thirty-day deadline from knowledge of the judgment. The deadline runs from a precise event, not from the moment one decides to tackle the problem.
To orient oneself, one first needs the ruling of the Court of Cassation complete with the operative part and filing date, the judgments of the previous degrees, and the documents documenting the new fact, the absence, or the denounced error. If the doubt concerns an already enforceable conviction, it is important to separate the remedy against the final judgment from issues concerning solely its enforcement. The choice of remedy precedes the drafting of the act.
Frequently asked questions
Can I appeal a judgment of the Court of Cassation because I do not agree with its decision?
No, simple disagreement is not enough. After the Court of Cassation, there is no ordinary appeal to freely re-evaluate evidence, responsibility, or sentence. It is necessary to identify a specific extraordinary remedy: a material or factual error by the Court, new evidence suitable for review, an absence problem, or a violation ascertained by the European Court.
When do the 180 days for the extraordinary appeal start running?
For an application concerning a factual error, the one hundred and eighty days run from the ruling’s filing. They do not run from when the error is understood or informally explained. Clerical errors follow a different rule and the Court may identify them of its own motion without that time limit. For factual errors identified of its own motion, the statutory period is instead ninety days from deliberation.
Does the extraordinary appeal block the enforcement of the sentence?
No, not automatically. The submission of the request pursuant to Article 625-bis does not suspend the effects of the Court of Cassation's ruling. The Court may order suspension by order only in cases of exceptional gravity. For this reason, it is incorrect to base urgent choices on the idea that the mere filing of the act stops enforcement.
Can new evidence be asserted as a factual error of the Court of Cassation?
As a rule, these are different issues. A factual error concerns an oversight by the Court of Cassation regarding acts already available in the legitimacy judgment. Evidence that emerges subsequently, if it is genuinely new and can lead to acquittal together with the material already evaluated, points instead towards the review of the conviction.
If the European Court recognizes a violation, is the conviction automatically annulled?
No, it is necessary to activate the provided remedy. Article 628-bis c.p.p. requires an application to the Court of Cassation, proposed within the deadlines and based on the final European decision referring to the applicant. The Court also evaluates whether the violation, by nature and gravity, effectively impacted the conviction and establishes what measure is necessary to remove the prejudice.