Appeal Agreement and Substitute Penalties: The Clarity of the Court of Cassation with Ruling No. 19626/2025

The Italian legal landscape is constantly evolving, especially after the introduction of the Cartabia Reform (Legislative Decree of October 10, 2022, No. 150) and subsequent amendments (Legislative Decree of March 19, 2024, No. 31). Among the numerous innovations, one of the most discussed concerns the application of substitute penalties for short-term custodial sentences and their relationship with procedural institutes. The Court of Cassation, with its recent Ruling No. 19626, filed on May 26, 2025, has provided fundamental clarification regarding the applicability of Article 545-bis of the Code of Criminal Procedure to appeal agreements, an issue of great practical importance for legal professionals and citizens involved in criminal proceedings.

The Regulatory Context: Art. 545-bis c.p.p. and Appeal Agreement

To fully understand the scope of the Supreme Court's decision, it is essential to frame the norms involved. Article 545-bis c.p.p., introduced by the Cartabia Reform, governs the possibility for the judge, in ordinary proceedings, to substitute short-term custodial sentences (up to four years) with non-custodial penalties (such as community service, house arrest, or semi-liberty), even ex officio, if deemed more appropriate for the offender's social reintegration. This provision represents a cornerstone of the Reform, aimed at reducing the use of detention and promoting alternative measures.

On the other hand, the appeal agreement, provided for by Article 599-bis c.p.p., offers parties (public prosecutor and defendant) the possibility to reach an agreement on the penalty to be applied or on the definition of the proceedings in the appeal phase, allowing for a faster resolution of the case and often a reduction of the sentence. Its nature as an "appeal plea bargain" makes it a peculiar institute, with dynamics and objectives distinct from first-instance proceedings.

The Decision of the Court of Cassation: Ruling No. 19626/2025

The Court of Cassation, presided over by Dr. G. A. and with Dr. B. M. as rapporteur, ruled on the appeal filed by the defendant S. R., rejecting the decision of the Court of Appeal of Naples of June 14, 2024. The core of the issue concerned precisely the possibility of applying Article 545-bis c.p.p. also within the framework of an appeal agreement. The Supreme Court resolved the question with unequivocal clarity:

The provisions of Article 545-bis, paragraph 1, of the Code of Criminal Procedure, introduced by Legislative Decree of October 10, 2022, No. 150 and amended by Legislative Decree of March 19, 2024, No. 31, do not apply to appeal agreements, as this provision is applicable, for textual and systematic reasons, exclusively to ordinary proceedings. (In its reasoning, the Court highlighted that, as in plea bargaining, in appeal agreements too, the substitution of a custodial penalty with one of the penalties referred to in Article 53 of Law of November 24, 1981, No. 689 can only occur if it has been the subject of the agreement).

This maxim highlights two crucial points. Firstly, the Court categorically excludes the applicability of Article 545-bis c.p.p. to appeal agreements. The reasoning lies in "textual and systematic reasons": the provision was conceived and formulated for "ordinary proceedings," understood as first-instance proceedings culminating in a judgment. The appeal agreement, while a decisive moment, takes place in a different procedural phase and responds to different logic, based on the agreement between the parties.

Secondly, the Court of Cassation reiterates a principle already known for plea bargaining (Article 444 c.p.p.) and extends it to appeal agreements (Article 599-bis c.p.p.): the substitution of a custodial penalty with one of the penalties provided for by Article 53 of Law No. 689/1981 (such as community service or house arrest) can occur only if such substitution has been expressly the subject of the agreement between the parties. This means that, unlike in ordinary proceedings where the judge can act ex officio pursuant to Art. 545-bis c.p.p., in appeal agreements, the initiative and will of the parties are central and irreplaceable for the choice of the substitute penalty.

The implications of this ruling are significant:

• Differentiation of proceedings: The distinction between ordinary proceedings and alternative/special procedures such as appeal agreements is strengthened.
• Role of the agreement: In appeal agreements, the agreement between the parties maintains a pre-eminent and decisive role in the choice of penalty, even in terms of its substitution.
• Defense strategy: Defense lawyers will need to be even more careful in explicitly negotiating the substitution of penalties within the appeal agreement, without being able to rely on an ex officio intervention by the appellate judge.

Conclusions: Legal Certainty and Defense Strategies

Ruling No. 19626/2025 of the Court of Cassation brings important interpretative clarity to an area of criminal procedural law that has seen multiple legislative interventions. It reiterates that substitute penalties in appeal agreements cannot be applied ex officio by the judge pursuant to Art. 545-bis c.p.p., but must be the result of an explicit agreement between the parties. This decision not only consolidates the principles of legality and party autonomy in special procedures but also offers clear guidance for defense strategies, emphasizing the importance of careful and comprehensive negotiation. For legal professionals, it is a reminder to carefully consider the procedural phase and the nature of the institute used, to ensure full protection of the rights and interests of their clients.