Cassation Ruling No. 9154/2025: Consent to a Substitute Penalty is Insufficient Without a Specific Ground of Appeal

With decision No. 9154 of 30 January 2025 (filed 5 March 2025), the Sixth Criminal Section of the Court of Cassation revisits the issue of substitute penalties for short custodial sentences, introduced by the "Cartabia Reform" and further refined by Legislative Decree 31/2024. The ruling, concerning the defendant C. P. M. C. A., rejects the appeal against the sentence of the Court of Appeal of Naples of 2 May 2024, but above all provides a firm point: the defendant's mere consent expressed by the participatory hearing, as provided for by art. 598-bis, paragraph 4-bis, of the Code of Criminal Procedure, is not sufficient if the substitution has not been referred to the second-instance judge with a specific ground of appeal.

The Regulatory Context: From the Cartabia Reform to Legislative Decree 31/2024

Legislative Decree 150/2022 introduced a comprehensive framework for substitute penalties into the Criminal Code and Code of Criminal Procedure, providing access to measures other than imprisonment for sentences up to three years. With the subsequent Legislative Decree 31/2024, the legislator amended art. 598-bis of the Code of Criminal Procedure, establishing that the defendant may express consent to the substitution "up to the date of the participatory hearing" even on appeal.

It was questioned from various quarters whether this option made an appeal on that point superfluous. The ruling under review dispels all doubt, reaffirming the centrality of the principle of devolution of appeal as established by arts. 597 and 598-bis of the Code of Criminal Procedure.

In the matter of substitute penalties for short custodial sentences, the option granted to the defendant by art. 598-bis, paragraph 4-bis, of the Code of Criminal Procedure, introduced by art. 2, paragraph 1, letter z), number 3), of Legislative Decree 19 March 2024, no. 31, to express consent to the substitution of the penalty up to the date of the participatory hearing, does not eliminate the need for the issue to be referred to the Court of Appeal through a specific ground of appeal, with the main appeal or with new grounds. (Case not regulated "ratione temporis" by the transitional provisions of art. 95 of Legislative Decree 10 October 2022, no. 150).

The Court refers to its previous rulings (Cass. 42825/2024; SU 12872/2017) and states that the logic of devolution "upon request of the party" remains intact: if the request is not conveyed by a ground of appeal, the territorial Court cannot rule on it.

Practical Implications for the Defence

• The defence counsel must formulate a specific ground for substitution, under penalty of inadmissibility.
• The defendant's consent, if not accompanied by a ground, has no procedural effect.
• It is possible to supplement the appeal with new grounds pursuant to art. 598-bis, paragraph 4, of the Code of Criminal Procedure, within the prescribed time limits.
• The transitional provisions of art. 95 of Legislative Decree 150/2022 do not apply to proceedings initiated after the entry into force of Legislative Decree 31/2024.

The ruling calls for greater editorial attention in appeal documents: the request for substitution must be substantiated, indicating the prerequisites referred to in art. 20-bis of the Criminal Code (gravity of the offence, defendant's personality, social prognosis).

European and Constitutional Law Aspects

The Cassation's orientation appears consistent with art. 6 of the ECHR, which guarantees the right to a fair trial but does not impose on the appellate judge ex officio powers of cognition beyond the grounds submitted. Internally, the decision aligns with art. 111 of the Constitution and with constitutional case law on the function of appeal as a "process with constrained review" (Constitutional Court, ruling 50/2020).

Conclusions

Ruling No. 9154/2025 reiterates that the effectiveness of substitute penalties depends on the precision of defence submissions: the legislator has expanded the scope for alternative measures, but it is up to the parties to act punctually. For lawyers, this means preparing dedicated grounds of appeal, highlighting factual and legal elements that make the substitution convenient and consistent with the rehabilitative purposes enshrined in art. 27 of the Constitution. Inattention to this aspect can preclude the client from accessing less burdensome sanctions, exposing them to a custodial sentence that, by law, could have been avoided.