The Court of Cassation on Plea Bargains and Continuing Offence: Analysis of Judgment No. 17175/2025

The concept of continuing offence, governed by Article 81, paragraph 2, of the Italian Criminal Code, is crucial in Italian law, aiming to mitigate the penalty for those who commit multiple offences with a single criminal design. Its application, however, becomes complicated when offences have been judged through different procedural routes, such as the abbreviated procedure and plea bargaining, which provide for sentence reductions. Judgment No. 17175 of 30/01/2025 by the Court of Cassation intervenes precisely on this delicate issue, offering clarity to the execution judge on how to determine the "most serious offence" in such contexts. This decision, of great practical relevance, deserves careful analysis to understand its scope on the quantification of the final penalty.

Continuing Offence: A Fundamental Concept

Article 81, paragraph 2, of the Criminal Code establishes that whoever, with a single criminal design, commits multiple violations of the law shall be punished with the penalty provided for the most serious violation, increased up to threefold. This institution aims for an overall less burdensome sanctioning treatment compared to the material aggregation of penalties, recognising the unity of the criminal intent. Its application requires the identification of the "most serious" offence, which serves as the basis for calculating the penalty. On this point, jurisprudence has often encountered interpretative difficulties, especially when the offences have been judged through different procedural routes that provide for sentence reductions.

The Crucial Point of Judgment 17175/2025: Plea Bargains and the Most Serious Offence

Judgment No. 17175 of 30/01/2025 (filed on 07/05/2025), with President G. D. M. and Rapporteur F. C., addresses the criterion for identifying the most serious offence for the purposes of continuing offence, when one offence has been judged through the abbreviated procedure and the other through plea bargaining. Both procedures provide for sentence reductions. The debate revolved around considering the penalty "in abstract" or "in concrete".

The Court, partially annulling with referral the decision of the Court of Rome of 24/09/2024 concerning the defendant G. C., has provided a clear answer, crystallised in the following maxim:

In matters of continuing offence in the execution phase between an offence judged by abbreviated procedure and an offence subject to a plea bargain sentence, the judge must take into account, for the determination of the most serious offence, the penalties concretely imposed by the two sentences, including the reduction applied for the respective plea bargain procedures.

This principle is fundamental: the execution judge must consider the penalties actually imposed, already including the reductions from the abbreviated procedure (Art. 442, paragraph 2, c.p.p.) or plea bargaining (Art. 444 c.p.p.). This interpretation aligns with a jurisprudential trend that favours the concrete procedural data and the certainty of the penalty (e.g., Cass. Pen. No. 21808/2020 and No. 30119/2021), overcoming dissenting opinions. The United Sections (Judgments No. 35852/2018 and No. 7029/2024) had already pointed towards this approach.

The implications are significant:

• Jurisprudential Clarity: Resolves uncertainties in the application of Art. 671 c.p.p.
• System Coherence: Ensures that the benefits of plea bargain procedures are not nullified.
• Legal Certainty: Greater predictability of the overall penalty for those convicted.
• Application Simplicity: Avoids complex operations of "stripping" sentence reductions.

Practical Implications for the Accused and Justice

For the defendant, the Court of Cassation's decision is a firm point: the choice of alternative procedures maintains its full effectiveness even in cases of continuing offence. The sentence reduction obtained will not be reconsidered by the execution judge, strengthening trust in procedural tools and the predictability of the sanctioning outcome.

For the judicial system, the judgment promotes efficiency and coherence. The Execution Judge (Art. 671 c.p.p.) is now called upon to apply a uniform criterion, reducing litigation and ensuring greater uniformity. This ruling not only clarifies a technical aspect but also reinforces the principles of legality and legal certainty.

Conclusions: A Step Towards Jurisprudential Clarity

Judgment No. 17175 of 30/01/2025 by the Court of Cassation is a clarifying and relevant intervention in Italian criminal law. By addressing the issue of determining the most serious offence in cases of continuing offence between penalties from abbreviated procedures and plea bargaining, the Court has established a principle that favours the concreteness of the imposed penalties. This approach ensures greater legal certainty, simplifies the task of the execution judge, and reaffirms the value of plea bargain procedures. For legal professionals and citizens, it is a beacon in the complex matter of continuing offence, consolidating a more transparent, fair, and predictable application of criminal justice.