Continued offence and heterogeneous sanctions: Cassation n. 9251/2025 clarifies the penalty increase ceiling

How does the constraint of continuation affect the determination of the penalty when the offences that compose it are punished with penalties of different natures, one custodial and one pecuniary? The Court of Cassation, Section VI, judgment no. 9251 filed on March 6, 2025, intervenes on a subject that is only apparently technical, but of crucial importance for the concrete execution of the penalty and, consequently, for the defence strategy. In the case in question, the defendant – indicated in the judgment as M. I. – had been convicted of a principal offence punishable by imprisonment and a so-called "satellite offence" punishable by a fine. On appeal, the increase pursuant to art. 81 of the Italian Criminal Code was calculated by mechanically adding days of imprisonment to pecuniary amounts, with the risk of exceeding the legal threshold of the lesser sanction.

The legal principle affirmed

In the context of multiple offences punished with heterogeneous sanctions, unified by the constraint of continuation, the increase in the custodial penalty provided for the more serious offence must be equated, through conversion, to the pecuniary penalty provided for the satellite offence, but in no case may it exceed the maximum penalty prescribed by law for the less serious offence.

The Court, referring to the United Sections no. 40983/2018 and the consistent precedents no. 8667/2019 and 22088/2020, brings order to the jungle of divergent practices. The key criterion is the equating between custodial and pecuniary penalties: starting from the penalty for the more serious offence (imprisonment), it is converted into a pecuniary amount (art. 135 of the Italian Criminal Code) and the increase is calculated. However, once the imprisonment has been "monetised", this increase can never exceed the maximum statutory penalty provided for the less serious offence. In this way, the Cassation explains, it is avoided that the satellite offence – conceived by the legislator as of lesser social alarm – generates a disproportionate multiplier effect.

The reference regulatory framework

• Art. 81, paragraph 2, of the Italian Criminal Code: governs the continued offence and allows for a penalty increase "up to three times" for subsequent offences.
• Art. 135 of the Italian Criminal Code: regulates the conversion between custodial and pecuniary penalties (one day of arrest/imprisonment = 250 euros of fine or penalty after Law 689/1981).
• Rulings of the Constitutional Court that have reiterated the need for proportionality and certainty in the assessment of penalties (judgments no. 409/1989, 201/2012).

The Cassation emphasises that the limit to "exceeding the maximum" derives directly from the principle of legality enshrined in art. 25, paragraph 2, of the Italian Constitution and art. 7 of the ECHR: the penalty must remain within the boundaries set by the legislator for each offence. An unlimited increase would lead to an undue equivalence of less serious judged facts, infringing the principle of proportionality.

Practical implications for defence

The judgment offers useful clarifications to criminal lawyers who find themselves discussing continuation between offences with different penalties. In particular:

• It is the defence's duty to highlight to the judge the existence of a lower statutory framework for the satellite offence, requesting compliance with the maximum limit.
• In appeal or cassation proceedings, violation of this criterion constitutes an error in iudicando which leads, as in the present case, to the annulment without referral of the merits judgment with redetermination of the penalty.
• The correct application of art. 135 of the Italian Criminal Code requires motivation on the conversion rate and the relationship between days of imprisonment and the amount of the fine, avoiding "lump-sum" calculations.

Finally, the possible impact on execution should not be overlooked: if the conversion leads to a negligible pecuniary amount, the defendant may opt for payment, averting alternative restrictive measures.

Conclusions

Judgment no. 9251/2025 consolidates an orientation favourable to the protection of the principle of proportionality in continued offences with heterogeneous sanctions. The Cassation reiterates that the penalty increase can never exceed the maximum statutory penalty of the less serious offence, filling an application gap and offering operational guidelines to judges and lawyers. For the criminal law professional, the decision constitutes a precedent to be invoked whenever the accessory penalty risks transforming, paradoxically, into the principal sanction.