Substitute Penalties and Prognosis of Compliance: Commentary on Cassation Ruling No. 8569/2024

Ruling No. 8569, filed on March 3, 2025, offers a valuable insight for reflecting on the application limits of short-term substitute penalties. The case – electricity theft – led the Court of Cassation (pres. R. C., rapporteur R. S.) to uphold the decision of the Court of Appeal of Salerno, which had denied the conversion of the custodial sentence into a pecuniary sanction, deeming the defendant's non-compliance probable. This is a current issue following the Cartabia reform, which aims to decongest the prison system but at the same time requires assessments of the concrete effectiveness of the penalty.

The Core of the Decision

In matters of substitute penalties for short custodial sentences, the trial judge may reject the request for the application of a pecuniary sanction in lieu of a custodial one if the nature of the crime under judgment suggests that the defendant will evade payment of the pecuniary penalty. (Case of electricity theft, in which the Court deemed correct the rejection of the request for the application of a pecuniary sanction in lieu of a custodial one, as the non-payment of the bill suggested that the defendant would also evade payment of the pecuniary penalty).

The reasoning revolves around two key concepts: the "prognosis of compliance" and the "rehabilitative function" of the penalty. The Court refers to Article 133 of the Italian Criminal Code – criteria for sentencing – emphasizing that the defendant's personality and conduct prior to the crime are useful indicators for predicting actual payment. In this specific case, the prolonged non-payment of electricity bills served as a litmus test: if the defendant does not pay the bill, they are unlikely to pay the substitute fine.

The Relevant Legal Framework

The rejection has solid legal roots:

• Article 20-bis of the Italian Criminal Code: introduces and regulates substitute penalties for short custodial sentences;
• Article 133 of the Italian Criminal Code: allows for the assessment of earning capacity and past conduct;
• Article 95 of Legislative Decree 150/2022 (Cartabia reform): reiterates the need for a verification of the concrete suitability and effectiveness of the sanction;
• Law 689/1981, Articles 56-59: principles regarding sanction conversion and instalment payments.

The Court of Cassation thus aligns judicial practice with the objective, also European, of avoiding merely symbolic penalties that may prove ineffective, in line with the European Court of Human Rights' indications on the principle of the effectiveness of penalties.

Practical Implications for Defence Counsel and Defendants

For the defence, the ruling serves as a reminder: the request for a substitute penalty must be supported by tangible evidence demonstrating the defendant's solvency (payslips, bank statements, asset guarantees). For its part, the judge is required to provide a detailed justification for rejection, avoiding boilerplate formulas. In their absence, the decision may be challenged before the Court of Cassation, as taught by the precedents recalled in the summary (Cass. 42847/2023; 2341/2024; 45859/2024).

For defendants with precarious financial situations, the alternatives of probation or community service remain viable, institutions that presuppose a less stringent assessment of payment capacity but a more burdensome personal commitment.

Conclusions

Cassation Ruling No. 8569/2024 reiterates that a substitute penalty is not an automatic right but a possibility subject to a favourable prognosis of compliance. The message for legal professionals and citizens is clear: the system aims for useful penalties, not merely formal ones. Defence counsel must therefore prepare solid economic and asset dossiers, while judges must rigorously justify their choices, balancing the need for prison decongestion with guarantees of sanction effectiveness.