Commentary on Judgment no. 1653 of 2025: The 'favor rei' principle in the disciplinary liability of magistrates

Judgment no. 1653 of 2025, issued by the Supreme Court of Cassation, addresses a highly relevant issue in the context of the disciplinary liability of magistrates: the applicability of the 'favor rei' principle under art. 2 of the Italian Criminal Code. In this article, we will analyze the main aspects of the judgment, highlighting its legal implications and the Court's reasons for its decision.

The 'favor rei' principle

The 'favor rei' principle establishes that, in cases of 'abolitio criminis' (abolition of a crime), the law more favourable to the defendant must be applied retroactively. However, the Court has clarified that this principle does not apply to the disciplinary liability of magistrates, as disciplinary offences are considered administrative in nature.

Principle of "favor rei" ex art. 2 c.p. - Applicability - Exclusion - Art. 32 bis d.lgs. 109 of 2006 - Introduction of the principle - Exclusion - Basis - Factual circumstances.

Exclusion of 'favor rei' in the discipline of magistrates

The Court reiterated that, as the 'favor rei' principle does not apply, legislative changes affecting the discipline of magistrates cannot have retroactive effect. In particular, art. 32 bis, paragraph 2, of Legislative Decree no. 109 of 2006 does not provide for a system of rules similar to that of art. 2 of the Criminal Code, merely stating that, for acts committed before the decree came into force, the more favourable provisions of art. 18 of Royal Decree-Law no. 511 of 1946 apply.

• The 'favor rei' does not apply to disciplinary offences.
• Disciplinary regulations follow a different regime compared to criminal ones.
• Regulatory changes do not have retroactive effect.

Basis of the decision and practical implications

In the specific case, the Court excluded the relevance of the rewriting of art. 346 bis of the Criminal Code in relation to the crime of illicit influence peddling, stating that the legal qualification of the disciplinary relevant act must be made according to the regulatory framework in force at the time of the conduct. This clarification is fundamental to ensure legal certainty and the stability of the disciplinary system.

Conclusions

Judgment no. 1653 of 2025 represents an important reference point in understanding the disciplinary liability of magistrates. The exclusion of the 'favor rei' principle in this context underscores the need for rigorous application of disciplinary rules, maintaining the distinction between criminal and administrative law. Legal professionals and magistrates themselves must be aware of these differences to ensure the proper functioning of justice.