Voluntary Withdrawal and Attempted Homicide: Supreme Court Criminal Ruling no. 13104/2024 between Freedom of Choice and External Causes

The recent ruling of the Court of Cassation no. 13104/2024 (hearing of 13 December 2024, filed 3 April 2025) provides an opportunity to reflect on a crucial issue in criminal law: voluntary withdrawal as provided for by Article 56 of the Italian Criminal Code. The case, stemming from an attempted strangulation within the family unit, brings the relationship between the perpetrator's self-determination and external factors preventing the continuation of the criminal action back into focus.

The Facts and the Supreme Court's Decision

The defendant, after wrapping an electrical wire around his wife's neck, interrupted the action due to the victim's reaction and the timely intervention of their minor daughter. Convicted on appeal by the Court of Catanzaro, he appealed to the Court of Cassation, invoking voluntary withdrawal as a ground for non-punishability beyond the attempt.

The First Criminal Section rejected the appeal, reiterating that withdrawal requires a free and autonomous choice, which is absent when the renunciation is the result of external circumstances that render the criminal intent futile.

In matters of attempt, voluntary withdrawal presupposes that the interruption of the criminal action is the consequence of an autonomous and free determination by the perpetrator and not of external factors that have prevented or rendered the continuation of the action futile. (Case concerning attempted homicide, in which the configurability of voluntary withdrawal was excluded in the conduct of the defendant who, after attempting to strangle his wife with an electrical wire, had interrupted the action due to the victim's reaction and the intervention of the minor daughter).

Commentary: the maxim confirms the consistent interpretation that the perpetrator must withdraw spontaneously "with full control of the facts". If continuation becomes impracticable or risky due to supervening circumstances, there is no room for the preferential effects referred to in the second paragraph of Article 56 of the Criminal Code. This protects the principle of offensiveness without trivialising posthumous repentance.

Requirements for Voluntary Withdrawal

• Complete interruption of the criminal process: the perpetrator must cease all actions aimed at harming the legal interest.
• Decision-making autonomy: the choice must stem from a subjective assessment and not from coercive factors or the resistance of others.
• Absence of crime consummation: the damage must not have been perfected; otherwise, active withdrawal under Article 56, paragraph 3 of the Criminal Code would be relevant.

The orientation under comment aligns with established precedents (Cass. no. 12240/2018, 41484/2009, 17518/2019), demonstrating a rigorous interpretative line. Consistently, the ECtHR has repeatedly affirmed that the balance between repression and incentives for withdrawal cannot sacrifice the effective protection of the victim (see Matko v. Slovenia, 2010).

Practical Implications for Defence

The ruling provides some operational indications for criminal lawyers:

• Precisely assess the factual dynamics to demonstrate (or contest) the existence of genuine spontaneous repentance.
• Gather evidence on the internal motivations of the perpetrator, such as statements made promptly or behaviours preceding the intervention of third parties.
• Do not overlook the importance of the methods of interruption: documented and immediate reconsideration can make the difference between an attempt and non-punishability.

Conclusions

Cassation ruling no. 13104/2024 reiterates a clear principle: voluntary withdrawal must be genuinely free. When the perpetrator stops because they are forced by events, they remain punishable for the attempt, with significant implications for the sanctioning treatment. Understanding these boundaries is essential for both defence counsel and judges, as it involves the balance between general prevention, victim protection, and incentives for repentance.