A criminal complaint, the withdrawal of a complaint, and the compensation for damages may intersect within the same criminal proceedings, but they do not automatically produce the same effect. A victim who has filed a complaint may wonder whether a financial agreement is sufficient to close the proceedings; a suspect or defendant may question whether paying for the damages is enough even without the consent of the injured party. These are significant doubts, because an inaccurate formulation or a choice made too late can leave a matter open that the parties believed had been settled.
I wish to clarify what distinguishes these legal tools, when the withdrawal of a complaint can extinguish the offence, and in which cases the reparatory conduct under Article 162-ter of the Criminal Code opens a different path. We will also examine why a settlement agreement must carefully separate the civil aspect—namely, the damage and payment—from the criminal one.
Complaint, criminal proceedings and damages: three different levels
A complaint is a procedural condition for offences for which the law requires it. In such cases, the injured party expresses the will for criminal proceedings to be pursued regarding that specific event. If the offence is instead prosecutable ex officio, the filing or withdrawal of a complaint does not in itself determine the initiation or termination of the proceedings.
Compensation concerns the harm caused by the act: it may include restitution, the payment of a sum, or other measures suitable for repairing the prejudicial consequences. Payment can be highly significant in the relationship between the parties, but it does not always equate to a withdrawal of the complaint and does not automatically extinguish the offence.
Withdrawal, on the other hand, concerns the intention not to proceed with a complaint that can be withdrawn. When the law allows withdrawal and it produces effect, the offence is extinguished. Before making decisions, therefore, it is necessary to distinguish the specific title of the contested offence, its regime of prosecutability, and the potential presence of circumstances that may alter that regime.
The complaint: deadline and content of the initial choice
The ordinary deadline is three months from the day the injured party learns of the fact constituting the offence, pursuant to Article 124 of the Criminal Code. For individual offences, the law may establish a different deadline; therefore, it is not prudent to apply the ordinary deadline solely on the basis of the name of the offence or information received informally.
A complaint is not a simple notification of distress. It serves to express the will that the offender be prosecuted, while the exposition of the facts and the indication of the persons involved allow the authorities to frame the matter. An error regarding the date from which the deadline runs can affect the very possibility of proceeding, and this is why it matters to establish when the injured party became aware of the essential components of the fact.
Not all complaint-based offences share the same subsequent discipline. Some are subject to a withdrawable complaint: the injured party may waive prosecution within the limits established by law. Others are subject to an irrevocable complaint: the complaint remains necessary to proceed, but cannot be withdrawn with extinguishing effect. A necessary complaint does not always mean a withdrawable complaint.
When withdrawal extinguishes the offence
Withdrawal operates only in cases where the complaint is withdrawable. Article 152 of the Criminal Code establishes that, in offences punishable upon complaint by the injured party, the withdrawal extinguishes the offence; it also regulates procedural and extra-procedural forms, whether express or tacit. The current text also specifies hypotheses of tacit withdrawal and the relative limits for incapacitated persons or those in a condition of particular vulnerability. Article 152 of the Criminal Code on the withdrawal of the complaint.
Withdrawal may occur before the conviction becomes final, barring exceptions established by law. It cannot be made subject to conditions or terms: this rule prevents using the act of withdrawal as if it were a contractual promise suspended until a future event. An agreement may provide for payments and commitments between the parties, but the document must avoid confusing such obligations with the effectiveness of the withdrawal.
Withdrawal also requires the acceptance of the person complained against. The recipient of the withdrawal may expressly reject it or engage in behavior incompatible with acceptance. The reason is simple: the extinction of the offence also affects the position of the person subject to the proceedings, who may have an interest in proceeding to obtain a decision on the merits of the accusation.
Withdrawal does not necessarily entail the waiver of compensation or restitution. Article 152 allows for a waiver of such rights to be included in the act, but does not impose it. Silence on damages should not be filled with assumptions: it is necessary to understand whether the agreement provided for a satisfactory payment, whether economic items remain reserved, and whether a waiver was actually expressed.
Reparatory conduct: the alternative under Article 162-ter
Reparatory conduct does not coincide with withdrawal. Article 162-ter of the Criminal Code allows the judge to declare an offence extinguished in cases of offences prosecutable upon a withdrawable complaint when the defendant fully repairs the damage through restitution or compensation and eliminates, where possible, the harmful or dangerous consequences of the act. The injured party is heard, but the institute does not presuppose that they withdraw the complaint. Article 162-ter of the Criminal Code on reparatory conduct.
Compensation must be full, not merely symbolic or partial. Furthermore, if the act has left material or dangerous consequences that can be eliminated, payment alone is not enough: the rule requires them to be removed, where possible. The judge assesses whether the reparation meets these requirements; it is not sufficient for the defendant to unilaterally qualify a sum as complete compensation.
The provision sets the declaration of the opening of the first-instance trial as the maximum time limit. If the defendant demonstrates inability to comply by that time due to a fact not attributable to them, they may request an additional period, of up to six months, also to pay in installments. The extension is not automatic: it requires a request to the judge, proof of the non-attributable impediment, and an accepting ruling.
If the injured party does not accept the money, Article 162-ter contemplates the formal tender provided for by the Civil Code: the judge may consider it for the purposes of extinction only if they deem the sum offered as compensation to be fair. This prevents the refusal of a payment alone from deciding the matter, but does not transform any offer into sufficient reparation. Fairness and completeness remain decisive.
The institute does not apply to offences prosecutable ex officio, to hypotheses of irrevocable complaints, and to cases expressly excluded by law. In particular, Article 162-ter excludes cases of stalking provided for by Article 612-bis of the Criminal Code. Law no. 172 of 2017 and the application limit of Article 162-ter.
The settlement agreement: what it can close and what it must state
A settlement is first and foremost a civil agreement. The parties may settle a dispute regarding damages, establish a sum, a method of payment, a restitution, or other commitments. This can prevent or settle the claim for compensation, but must not be automatically interpreted as a withdrawal of the complaint nor as a declaration of extinction of the offence.
A clear text separates at least three aspects: the obligation to pay or make restitution; any waiver by the injured party of further civil claims; the choice regarding the complaint. The waiver of damages and the withdrawal are not synonyms. The former concerns economic claims; the latter concerns criminal prosecution in the sole cases permitted.
If payment is made in installments, a practical contradiction must be avoided. The withdrawal cannot be made conditional upon the punctual payment of the installments; however, the parties may regulate the consequences of default under civil law. The sequence of acts matters: settling first, regulating payment concurrently, or issuing a receipt are not equivalent choices when the effect on criminal proceedings is also at stake.
It is then necessary to distinguish the agreement reached with the injured party from the verification required by Article 162-ter. In the presence of an effective withdrawal, the crux is the extinction resulting from the withdrawal. If, on the other hand, the complaint is not withdrawn, the defendant cannot substitute a generic agreement for the full reparation that the rule requires. The concrete content of the reparation, rather than the title given to the document, then becomes central.
Which path to consider before signing or paying
The first question is whether the offence is withdrawable. Without this verification, it is impossible to know whether a withdrawal can produce the extinction of the offence or whether the proceedings will continue despite the understanding between the parties. It is important to look at the actual contestation and the circumstances indicated in the records, not solely at the initial account of the fact.
The second question concerns the objective of the agreement. The injured party may wish to obtain financial relief, also close the criminal side, or maintain a reservation on certain items of damage. The defendant may wish to comply to settle the conflict or, if the prerequisites are met, request the application of Article 162-ter. Different objectives require different clauses.
Before making a payment or a statement, it is useful to gather the complaint, any imputation, damage documentation, receipts, and communications regarding the agreement into a single framework. The procedural timing is not a detail: for reparatory conduct, the deadline of the opening of the trial can radically change the available possibilities. If the text of the agreement is to affect the criminal proceedings as well, you can contact me to examine its effects and limits before signing.
Frequently Asked Questions
How much time do I have to file a complaint?
As a rule, the deadline is three months from the day you learn of the fact constituting the offence, pursuant to Article 124 of the Criminal Code. However, certain offences have different deadlines, so it is necessary to verify the specific legal provision and the moment from which knowledge of the fact is legally relevant.
Does compensation for damages always close the criminal proceedings?
No, payment does not always close the proceedings. It can settle the civil damage, support an agreement, and, in envisaged cases, contribute to the reparatory conduct under Article 162-ter. For extinction, however, the correct prosecutability regime and all the requirements proper to the tool used are necessary.
Can I withdraw the complaint after signing a settlement?
Yes, if the offence is subject to a withdrawable complaint and the conviction has not become final, barring exceptions established by law. The settlement does not automatically substitute the withdrawal: if you want the agreement to also affect the criminal proceedings, the choice must be clearly stated and respect the discipline of withdrawal.
If I do not accept the sum offered, can the defendant still obtain extinction?
This can happen only in cases regulated by Article 162-ter. If the defendant makes a formal tender and the judge deems the sum offered to be fair, the refusal of the injured party does not necessarily prevent extinction. Full reparation, the removal of eliminable consequences, and compliance with the procedural deadline remain indispensable.
Does withdrawal make me lose the right to compensation?
No, not automatically. The waiver of restitution or compensation can be included in the act of withdrawal, but it is an additional choice. To understand whether economic claims remain, one must read the withdrawal, settlement, receipts, and any eventual waiver or reservation clause together.