The Court of Cassation and Partial Judgment: Analysis of Judgment no. 18346/2025 on Prosecutability and Withdrawal of Complaint

Italian criminal law, in continuous evolution, especially after the Cartabia Reform, presents complex interpretative issues. One of these is the interaction between partial judgment, change in the prosecutability regime of a crime, and the effectiveness of the withdrawal of a complaint. The Court of Cassation, with judgment no. 18346 of 2025, offers a fundamental clarification, crucial for lawyers and legal professionals.

Partial Judgment and Prosecutability: The Key Distinction

The ruling addresses a partial annulment with referral by the Supreme Court, limited solely to the sanctioning treatment. In such cases, the ascertainment of the crime and its attribution to the defendant – such as R. A., accused of attempted aggravated theft – acquire the authority of res judicata. This means that these aspects can no longer be discussed in the new trial.

With recent reforms, many crimes have shifted from being prosecutable ex officio to requiring a complaint. The question arises whether a change in prosecutability can influence a referral judgment, given the partial judgment already formed. The Court of Cassation responds with an essential distinction:

In cases of partial annulment with referral by the Court of Cassation relating solely to the sanctioning treatment, issues concerning the ascertainment of the existence of the crime and its attribution to the defendant acquire the authority of res judicata, with the consequent irrelevance, in the new trial, of issues relating to the changed prosecutability regime of the crime, unlike what happens in the case of withdrawal of a complaint, whose extinguishing effect, as it is linked to the mere existence of the proceedings and not to what has been ascertained therein, is not precluded by the formation of a partial judgment. (Case of attempted aggravated theft).

The maxim clarifies that the partial judgment on the ascertainment of the crime makes a subsequent change in the prosecutability regime irrelevant. The judgment is formed on the "fact" and the "charge," while prosecutability is a condition for criminal action. If the fact has already been definitively ascertained, its prosecutability is irrelevant for the continuation of the trial, except for the penalty.

Withdrawal of Complaint: The Relevant Exception

The true innovation of judgment no. 18346/2025 lies in its distinction from the withdrawal of a complaint. Despite the partial judgment on the merits, the Court states that the withdrawal maintains its full extinguishing effect. This difference stems from the very nature of the withdrawal.

Unlike a change in prosecutability, the withdrawal is an act of will by the offended party that directly affects the existence of the proceedings. Its extinguishing effect is not linked to what has been ascertained on the merits, but to the mere existence and continuation of the criminal proceedings. It acts as a "withdrawal" of the possibility to prosecute the crime, regardless of its already ascertained validity.

This principle is crucial for crimes made prosecutable by complaint by the Cartabia Reform (Legislative Decree 150/2020, art. 2, paragraph 1, letter I). The Court, with President R. P. and Rapporteur M. E. M., emphasizes that the extinguishing effect of the withdrawal is not precluded by the formation of a partial judgment, recognizing the prevalence of the victim's will in view of procedural deflation. Among the practical effects:

• Autonomous extinguishing effect: It operates independently of the procedural stage.
• Does not preclude judgment on the fact: Liability is ascertained, but no sanction is imposed.
• Opportunity for the parties: It offers possibilities for conciliation and closure of the dispute.

Conclusions and Practical Implications

Judgment no. 18346 of 2025 by the Court of Cassation provides clear guidance on the interaction between partial judgment, procedural reforms, and withdrawal of a complaint. It recognizes the solidity of the judgment on ascertained facts, but at the same time the extinguishing force of the withdrawal, even when it occurs after a partial judgment.

For lawyers and legal professionals, this ruling is fundamental for navigating referral judgments. It underscores the importance of evaluating every opportunity for conciliation and considering the withdrawal of a complaint as an effective tool for resolving proceedings, even in advanced stages. A delicate balance between legal certainty and the flexibility needed for the best solution for the parties involved.