Revocation of Conditional Suspension and the Five-Year Term: Commentary on Cass. pen. no. 12847/2025

The Supreme Court returns to the perennial topic of the conditional suspension and its revocation pursuant to art. 168, paragraph 1, no. 1, of the Criminal Code. With decision no. 12847 of 26 February 2025 (filed 3 April 2025), the First Criminal Section reiterated a principle that concerns both legal practitioners and those who, benefiting from the suspension of the sentence, wonder about the risks of forfeiture in case of a new conviction.

The Specific Case and Reference to Jurisprudential Precedents

The defendant, G. F., who had already benefited from the suspension, was tried for a different crime committed within the five-year period provided for by art. 168 of the Criminal Code. The Court of Nocera Inferiore had ordered the revocation of the conditional suspension: the defence argued that the new sentence had not yet become final. The Court of Cassation, referring to rulings from 2024 and the United Sections decision 7551/1998, rejected the appeal, confirming the restrictive line.

The Principle of Law Expressed

In matters of conditional suspension of sentence, the revocation ordered, pursuant to art. 168, first paragraph, no. 1, of the Criminal Code, for the commission of another crime within five years from the date of finality of the sentence that granted the benefit, does not presuppose that the sentence establishing the new crime becomes final within the same period. The meaning of the principle is clear: what matters is the fact of the crime, not the finality of its ascertainment. Once it is ascertained – even with a non-final judgment – that the defendant has committed a new crime within the five-year period, the execution judge (art. 674 of the Code of Criminal Procedure) must order the revocation of the benefit. The finalization of the judgment may, if anything, affect any potential restoration of time limits if, in a subsequent appeal, that ascertainment were to be overturned.

Regulatory Aspects and Rationale of the Discipline

The institution of conditional suspension, regulated by arts. 163-168 of the Criminal Code, aims to promote the rehabilitation of the convicted person by avoiding the execution of the custodial sentence, provided that they maintain irreproachable conduct for a given period (probationary period). The legislator thus establishes a pact between the State and the convicted person: in case of violation – commission of a felony or a misdemeanour of the same nature – trust is lost, and the sentence becomes enforceable without delay.

• The term is five years (two for misdemeanours) from the finality of the first sentence.
• The new crime must be a felony; for the purpose of revocation, the finality of the second sentence is not required.
• The execution judge proceeds by order: art. 679 of the Code of Criminal Procedure allows for opposition.
• If the second sentence is subsequently overturned on appeal or quashed by the Court of Cassation, the convicted person may request the revocation of the revocation (art. 674, paragraph 3, of the Code of Criminal Procedure).

Practical Implications for Defence and Defendant

For the defence counsel, it is crucial to monitor the timelines: the mere pendency of an appeal does not prevent revocation, but a subsequent acquittal will require prompt action to reinstate the benefit. On the prosecution's side, the ruling offers a streamlined process: a first-instance judgment is sufficient to request the execution judge to trigger the forfeiture. The defendant, on the other hand, must be aware that any criminal conduct, even if still sub judice, jeopardizes the suspension.

Conclusions

Cass. pen. no. 12847/2025 strengthens the preventive function of conditional suspension, decoupling revocation from the often lengthy wait for a final judgment. This leads to a clear message: the procedural “pact” requires conduct free from new crimes, regardless of the finality of the ascertainment. Law firms and justice operators are called upon to carefully manage the executive implications, knowing that the protection of the convicted person, at this stage, primarily involves prompt appeals and requests for revocation of the execution order should the ascertainment subsequently cease to exist.