Judgment no. 11929/2025: Cassation appeal admissible when prosecution by complaint subsequently becomes applicable

The decision of the Court of Cassation (Section 5, judgment no. 11929 of 26/02/2025, filed on 25/03/2025) addresses a procedural issue of growing importance: the admissibility of an appeal alleging inadmissibility due to lack of a complaint, when prosecution by complaint was introduced after the appealed judgment. The analysis is particularly significant in light of Legislative Decree 19 March 2024, no. 31, which amended the prosecution requirements for certain offences.

The ruling's maxim and its meaning

In matters of appellate review, an appeal that raises, on a single ground, the issue of inadmissibility due to lack of a complaint for an offence for which such prosecution requirement was introduced after the appealed judgment is admissible. (Case concerning the offence of damage to property exposed to public faith, which became subject to prosecution at the initiative of the party as a result of art. 1, paragraph 1, letter b), Legislative Decree 19 March 2024, no. 31).

With this maxim, the Court establishes a procedural principle: the new regulation making an offence prosecutable only upon complaint, introduced after the appealed judgment, can justify an appeal to the Court of Cassation based solely on the absence of a complaint. Consequently, the modification of prosecution requirements affects the legitimacy to proceed even at the appellate level.

Regulatory framework and case law references

The decision is part of recent legislative changes: Legislative Decree 19/03/2024 no. 31 has introduced, for certain offences (e.g., art. 635 of the Criminal Code, paragraph 2, letter 1) – damage to property exposed to public faith), prosecution by complaint. The Court also refers to provisions of the Criminal Code and the Code of Criminal Procedure, as well as previous maxims (including nos. 26418 and 37745 of 2024), consolidating a trend that recognizes the relevance of the subsequent occurrence of a ground for non-punishability or inadmissibility.

Practical implications for defence and prosecution

The ruling has concrete effects on defence strategy and prosecution activities:

• The defence can file an appeal to the Court of Cassation based solely on the subsequent inadmissibility due to lack of a complaint, even if the legislative amendment occurred after the appealed judgment.
• The public prosecutor must assess the potential absence of a complaint and the consequent inadmissibility already at the appellate stage if the new regulation is applicable.
• Possible increase in cases where proceedings are terminated or annulled without referral due to a subsequent cause of inadmissibility.

In practical terms, it is crucial to verify the effective date of legislative amendments and their retroactivity: the Court here allows the new prosecution requirement to affect the appellate review, in protection of the principle of legality and the legislator's renewed choice to protect certain interests only upon the initiative of the aggrieved party.

Conclusions

Judgment no. 11929/2025 clarifies that the subsequent introduction of prosecution by complaint can justify an appeal to the Court of Cassation whose sole ground is inadmissibility due to lack of a complaint. For legal professionals, this serves as a reminder to reconsider appeals and procedural assessments in light of legislative changes. Parties and defence counsel must pay attention to new offences prosecutable by complaint and the possible termination of proceedings when a complaint is not filed.

President: M. G. R. A.; Rapporteur: A. F.; Reporting Judge: A. F.; Defendant: B. P. M. C. F.