The Devolutive Principle in Criminal Appeals: Commentary on Cass. pen., Section I, Judgment No. 15687/2025

With decision No. 15687, filed on April 22, 2025, the Court of Cassation has once again ruled on the much-debated devolutive principle of criminal appeals. The case, concerning the defendant S. M., provides an opportunity to clarify the extent of the second-instance judge's powers of assessment, a topic of great importance for lawyers and practitioners involved in criminal defense.

The Regulatory Context

Article 597, paragraph 1, of the Code of Criminal Procedure states that the appellate judge's jurisdiction is limited to the counts and points of the challenged decision. This constraint guarantees the right of defense, preventing the second-instance judge from unilaterally expanding the scope of the trial. However, as early as the United Sections ruling Bove (Cass. No. 1/1995), jurisprudence has clarified that this limit does not apply to the reconstruction of the facts: on the points devolved, the judge may – and sometimes must – re-examine every aspect, even with different reasoning from the first instance.

The Procedural Case and Key Points of the Decision

In the case at hand, the Sassari Court of Appeal had upheld the conviction against S. M., but reconstructed the facts in a way partially different from that determined by the Tribunal. The defense objected to a violation of the devolutive principle, arguing that the different assessment of evidence constituted an ultra petita. The Court of Cassation rejected the appeal, citing a solid line of consistent precedents (Cass. 4743/1999; SU 10/2000) and affirming that the appellate judge, within the scope of the grounds of appeal, has the same cognitive powers as the first-instance judge.

In terms of the devolutive principle, the appellate judge has the same powers as the first-instance judge, with the consequence that their jurisdiction, although limited to the points of the decision to which the grounds refer, encounters no limits regarding the reconstruction of the facts and the reasoning used in the first-instance decision. (See, Section U, No. 1 of 27/09/1995, filed 1996, Rv. 203096) Commentary: the maxim highlights the apparent dichotomy between "limitation to the challenged counts" and "full powers of assessment." Once a specific count is opened for review, the second-instance judge can reconsider evidence, witness credibility, and legal qualifications; however, they are not permitted to extend their review to parts of the decision that were not devolved. This is a balance between the effectiveness of review and defensive guarantees, which requires the defense counsel to prepare precise but also broad grounds of appeal, so as not to preclude favorable avenues of review.

Practical Implications for Defense

• Need for detailed grounds of appeal: a generic appeal reduces the scope of action for the second-instance judge and, consequently, for the party itself.
• Evidentiary strategy: the defense must anticipate that the appellate judge may re-evaluate all material, including unfavorable elements.
• Focus on reasoning: demonstrating logical flaws or misrepresentation of evidence remains the primary way to achieve substantial reforms.

Conclusions

Judgment No. 15687/2025 reinforces an now-established trend: appeal is not a mere review of legality but a new judgment on the merits, albeit circumscribed by the devolved grounds. For legal professionals, this means calibrating the grounds of appeal with surgical precision, aware that every point raised in the appeal will be thoroughly scrutinized by the appellate judge, who is free to reconsider facts and law. A perspective that, if well exploited, can prove to be a decisive weapon in the defense of the accused.