Commentary on Judgment No. 45829 of 2024: Substitute Penalties and the Jurisdiction of the Remanding Judge

Judgment No. 45829 of December 6, 2024, issued by the Court of Cassation, offers interesting food for thought on the regulation of substitute penalties for short custodial sentences, particularly in light of the Cartabia Reform. This ruling clarifies the issue of the remanding judge's jurisdiction in cases of annulment of conviction judgments and the modalities for applying alternative penalties.

The Regulatory Context of the Cartabia Reform

The Cartabia Reform, implemented by Legislative Decree No. 150 of 2022, introduced significant innovations into the Italian legal landscape, particularly concerning substitute penalties. Article 95 of this decree establishes transitional provisions that apply to pending proceedings, generating a significant impact on the management of applications for penalty substitution.

• Substitute penalties can include measures such as community service.
• The annulment with referral of a conviction judgment allows for the reconsideration of the application of substitute penalties.
• The remanding judge has jurisdiction also for accessory rulings, not only for the determination of liability.

Analysis of the Judgment's Maxim

Substitute penalties for short custodial sentences - Transitional provisions pursuant to Art. 95 of Legislative Decree No. 150 of 2022 (so-called Cartabia Reform) - Proceedings pending before the Court of Cassation - Annulment with referral of the conviction judgment concerning only accessory rulings - Decision on the application for penalty substitution - Functional jurisdiction of the remanding judge - Existence - Case law. In the event of annulment with referral of a conviction judgment rendered, on appeal, before the entry into force of Legislative Decree No. 150 of October 10, 2022, the jurisdiction to decide on the application for substitute penalties for short custodial sentences lies, according to the transitional provision in Art. 95 of the aforementioned Legislative Decree, with the remanding judge, even if the annulment is limited to accessory rulings other than the determination of liability or the imposition of principal penalties. (In application of the principle, the Court annulled the decision made following a previous annulment concerning the duration of accessory penalties, by which the application for substitution of the custodial sentence with community service had been declared inadmissible on the erroneous ground that the request had not been made in the previous appellate proceedings, nor in the appeal to the Court of Cassation).

The Court clarified that, in cases of annulment with referral, it is the responsibility of the remanding judge to examine applications for penalty substitution, even in the presence of accessory rulings. This decision is fundamental as it eliminates any uncertainty regarding the judge's jurisdiction, thus ensuring greater legal certainty and more effective application of substitute measures.

Conclusions

Judgment No. 45829 of 2024 represents a step forward in regulatory clarity regarding substitute penalties and the judge's jurisdiction within the framework of the Cartabia Reform. Through this analysis, the importance of following the Court's indications, which are tasked with ensuring a fair and effective legal system, becomes evident. Legal professionals should pay particular attention to these provisions to provide adequate advice to their clients.