Criminal complaint and civil party constitution are two different tools, even though they often arise from the same event. If you have suffered a crime, you might wonder whether it is necessary to file a criminal complaint, whether you can obtain compensation within the criminal trial, or whether the two initiatives coincide. They do not coincide: the criminal complaint concerns the possibility of proceeding criminally for certain offences; the civil party constitution instead serves to request restitution or compensation for damages.
I will explain the difference between the offended party and the injured party, when the deadline for the criminal complaint becomes decisive, and what consequences arise from the choice to participate in the trial as a civil party. We will also see why an agreement, a remission, or a payment should not be confused with one another: each can affect the criminal proceedings and the financial claim differently.
Criminal Complaint: When It Is Necessary to Initiate Criminal Proceedings
A criminal complaint is a declaration by which the offended party expresses the will that proceedings be brought for an act provided for by law as a crime. It is only required for offences prosecutable upon complaint, meaning those for which the law does not allow criminal action to be initiated or pursued without the initiative of the offended party. If instead the crime is prosecutable ex officio, the public prosecutor proceeds even without a complaint.
The first check, therefore, does not concern only the name of the alleged crime. What matters is the concrete reconstruction of the facts: aggravating circumstances, the relationship between the individuals involved, the manner of the conduct, or other elements provided by law can change the regime of prosecutability. A police report does not always replace a criminal complaint: for offences that require it, the intention to request the criminal intervention of the authority must also emerge.
As a rule, the right to file a criminal complaint must be exercised within three months from the day the injured party learned of the fact constituting the crime, unless a provision establishes a different term. The general term stems from Article 124 of the Italian Criminal Code; an institutional summary of the essential rules is available in the guidelines of the Prosecutor's Office of Bologna on criminal complaints and deadlines. It is not prudent to wait without clarifying the starting date: if the deadline elapses to no avail, proceedings for an offence prosecutable upon complaint cannot be initiated on the basis of a late submission.
The criminal complaint can be made orally or in writing to the public prosecutor or judicial police; it can be filed personally or through a special attorney. The person presenting it must also manage contact details for trial notifications and report any changes in the declared domicile. The information for victims by the Prosecutor's Office of Rimini outlines these procedures and the main rights of the offended party.
Offended Party and Injured Party: A Distinction Affecting Choices
The offended party is the holder of the interest protected by the violated criminal norm. The injured party, on the other hand, is whoever suffers a pecuniary or non-pecuniary loss due to the crime. The two figures may coincide, but not always: an event can also damage individuals other than the one identified as the offended party of the crime.
This distinction matters because the right to file a criminal complaint generally belongs to the offended party, whereas the civil action in the criminal trial belongs to whoever suffered the loss. For example, an individual may have an interest in compensation even without holding the right to file a criminal complaint; conversely, whoever files a complaint does not automatically obtain compensation for it.
Filing a criminal complaint does not equate to asking for money. The criminal complaint requests that the authority proceed criminally, if the crime falls among those prosecutable upon private initiative. The request for the restitution of an asset, compensation for financial loss, or non-pecuniary loss instead requires a civil claim, to be brought within the criminal trial through a civil party constitution or before the civil court.
During preliminary investigations, the offended party can exercise specific faculties, such as submitting briefs, indicating evidence within established limits, and requesting, in permitted cases, information on the proceedings or notice of a request for dismissal. However, they do not become a civil party simply by filing a complaint: the constitution takes place in a subsequent procedural phase, according to the forms and terms established by the Italian Code of Criminal Procedure.
Civil Party Constitution: Claiming Compensation in the Criminal Trial
The civil party constitution is the act by which the injured party exercises the action for restitution and compensation for damages arising from the crime within the criminal trial. It is a choice of participation in the trial with a civil purpose: it does not transfer the task of supporting the criminal accusation to the civil party, which remains entrusted to the public prosecutor, but allows the compensation claim to be asserted in the criminal venue.
To constitute oneself as a civil party, a defense counsel is necessary, as well as a suitable power of attorney. The act must indicate who is constituting themselves, the person against whom the civil action is brought, the defense counsel, and the power of attorney, alongside the reasons justifying the claim. These requirements, set under penalty of inadmissibility, are governed by Article 78 of the Italian Code of Criminal Procedure. An incomplete or untimely filed act can prevent participation as a civil party.
Joining criminal proceedings as a civil party is subject to specific deadlines under Article 79 of the Italian Code of Criminal Procedure. Where a preliminary hearing is required, the application must be made before the checks on the constitution of the parties at that hearing have been completed. Where there is no preliminary hearing, the deadline is linked to the formalities under Article 484 or, in proceedings with a pre-trial hearing, those under Article 554-bis, paragraph two. Simply acting before evidence begins is therefore insufficient. Furthermore, where the Article 484 deadline applies, joining after the witness-list deadline does not restore the right to submit that list.
The civil party must link the loss to the contested fact. It is not enough to declare having suffered distress or a loss: it is necessary to explain why the event subject of the trial produced that loss and what civil claim is being advanced. Receipts, contractual documents, communications, certifications, photographs, or other elements can be relevant only if they demonstrate a concrete aspect: the existence of the loss, its extent, or the nexus with the crime.
Constituting oneself as a civil party does not guarantee a conviction nor compensation. The judge must decide on the civil claim within the limits permitted by the outcome of the trial and the acquired evidence. The loss must be proven and justified: the mere existence of criminal proceedings does not demonstrate by itself how much is due nor that every alleged prejudice depends on the contested fact.
Civil Party or Autonomous Civil Lawsuit: Two Paths to Compare
Anyone who has suffered a loss from a crime can choose to claim compensation within the criminal trial or to act before the civil court. The civil party constitution concentrates the compensation claim within the pre-existing criminal proceeding; the autonomous civil action instead follows the rules and timing proper to civil litigation.
The choice does not depend solely on the gravity of the fact or the amount of the loss. Above all, it matters whether criminal proceedings are actually pending, in what phase they find themselves, and whether the injured party possesses the necessary elements to formulate a precise civil claim. The type of evidence can also be important: certain facts emerge mainly from statements gathered in the criminal trial, others from documents, contractual relationships, or technical assessments requiring civil examination.
The two initiatives do not always freely overlap. The law regulates the relations between civil action exercised in the criminal trial and a lawsuit brought before the civil court. In particular, initiating a civil lawsuit after constituting oneself as a civil party can produce consequences on the permanence of the constitution within the criminal proceeding. Before duplicating initiatives, it is therefore essential to understand which claim has already been proposed and in what venue.
A choice may also change during the course of the affair. If the criminal proceeding is dismissed, does not reach trial, or concludes with a resolution that does not allow obtaining the desired civil response, compensatory protection is not necessarily exhausted; however, one must distinguish the criminal outcome from the civil claim and the elements that can support it. Not waiting passively for the criminal trial is often the mistake to avoid when the financial request requires an autonomous civil strategy.
Remission of Criminal Complaint and Agreement on Damages: Different Effects
Where withdrawal is permitted by law, the criminal complaint may be withdrawn before the conviction becomes final. The required formalities must be respected, including those under Article 340 of the Italian Code of Criminal Procedure. Extinction of the offence does not always require express acceptance: under Article 155 of the Italian Criminal Code, withdrawal has no effect if the accused has expressly or implicitly rejected it. Special rules may make certain complaints irrevocable or allow withdrawal only within the proceedings.
Not every criminal complaint is remittable. For certain offences, the law provides for a different regulation, also to protect interests that cannot be left solely to the disposal of the parties. Before evaluating remission, one must therefore verify both the concretely contested offence and any special regime that might apply.
A payment, a settlement proposal, and remission are not the same thing. Payment may concern the loss; remission concerns criminal prosecutability. A well-formulated agreement can govern both aspects, but no effect should be taken for granted: it is necessary to verify whether it contains a valid remission, whether this must be accepted, and whether it also contemplates a waiver of restitution or compensation.
Article 152 of the Italian Criminal Code allows for the act of remission to include a waiver of the right to restitution and compensation, but such a waiver does not derive automatically from remission alone. For this reason, anyone accepting a sum or signing an agreement must carefully read what is being settled: only the criminal proceeding, only the financial claim, or both issues.
Elements to Clarify Before Making a Choice
The first useful question is whether the fact is prosecutable ex officio or requires a criminal complaint. The second is whether you are the offended party, the injured party, or both. Criminal initiative and compensation claims depend on these two answers: confusing them can lead to missing a deadline or believing that a criminal complaint already contains a damages claim.
The phase of the proceeding also matters. A criminal complaint must be proposed within the foreseen deadline; a civil party constitution must respect the useful procedural moment. If you have already received a notice, a summons, a dismissal request, or a communication regarding a hearing, that document can indicate which step is unfolding and which faculties are still exercisable.
To orient yourself, it can be useful to keep together an essential chronology of the facts, copies of received communications, any messages or documents connected to the event, and proof of the damages you intend to claim. The chronology serves above all for the complaint deadline; documents on the loss instead serve to understand if and how to formulate a compensation claim. If you wish to address these steps with legal assistance, you can contact me.
Frequently Asked Questions
Does the criminal complaint automatically get me compensation?
No. The criminal complaint serves to request that criminal proceedings be brought for offences that require it. Compensation requires a civil claim: it can be proposed by constituting oneself as a civil party in the criminal trial or through an autonomous civil lawsuit. The complaint may contain useful elements to reconstruct the loss, but it does not replace the act of civil party constitution.
Does the three-month deadline apply to every criminal complaint?
Three months is the general rule provided by Article 124 of the Italian Criminal Code, running from the notice of the fact constituting the crime. However, the law may establish different deadlines or particular regulations for specific offences. For this reason, one must identify the fact and the applicable rule before calculating the expiration.
Can I constitute myself as a civil party during preliminary investigations?
No, not during investigations. A civil party must join at the preliminary hearing before the checks on the constitution of the parties have been completed. Where there is no such hearing, the deadline under Article 484 or Article 554-bis, paragraph two, for the pre-trial hearing applies. Waiting until trial when the deadline has already passed can prevent a damages claim in those criminal proceedings.
Can I constitute myself as a civil party even if I did not file a criminal complaint?
Yes, if criminal proceedings exist. In offences prosecutable ex officio, the injured party can request compensation by constituting themselves as a civil party without having filed a criminal complaint. If instead the crime requires a complaint and this is missing or late, the problem concerns first of all the very possibility for the criminal proceeding to continue.
Does remitting the complaint mean waiving damages as well?
Not necessarily. Remission can extinguish the crime when permitted by law and perfected in the required forms, but the waiver of compensation must be verified separately. The act of remission can include it, but it should not be presumed: an agreement should explicitly clarify whether it also settles restitutions and damages.