Appeals and Restorative Justice: Cassation No. 14338/2025 Clarifies the Appealability of Rejection Orders

Restorative justice, introduced into our legal system by Legislative Decree 150/2022, aims to mend the conflict between the offender and the victim through mediation processes. But what happens if the judge denies the defendant access to these programs? The judgment of the Court of Cassation No. 14338/2025 provides a clear answer: such a denial can be appealed to the Court of Cassation along with the merits judgment, without distinction between offenses requiring a complaint or those prosecuted ex officio. Below, we examine the scope of this principle and its implications for defense strategies.

The Relevant Legal Framework

Legislative Decree 150/2022 inserted Articles 129-bis and 129-ter into the Code of Criminal Procedure, regulating "restorative justice programs." Access is subject to a request from one of the parties and the judge's review, who may reject it by order. Until now, the appeal fate of such a provision was uncertain, partly due to the silence of Article 568 of the Code of Criminal Procedure and some conflicting rulings (Cass. 6595/2024; 7266/2025).

The Principle Affirmed by the Court of Cassation

In matters of appeals, the order rejecting the request for access to restorative justice programs, issued by the judge at the defendant's request, is appealable to the Court of Cassation along with the final judgment of the proceedings, without any distinction between offenses requiring a complaint that can be withdrawn and offenses prosecuted ex officio.

The Supreme Court, referencing Article 42 of Legislative Decree 150/2022 and the principle of the exhaustive nature of appeal remedies, extends the *appealability* (i.e., the capacity of the provision to be appealed) to the rejection order. This is because:

• the decision affects a procedural right of the defendant constitutionally protected (Art. 24 of the Constitution);
• the legislator intended to encourage the use of restorative practices, considering them useful also for the purposes of Article 62, no. 6 of the Criminal Code (mitigating circumstance for reparation of damage);
• the different prosecution regime is not relevant, as the interest in mediation persists in both offenses prosecuted ex officio and those requiring a complaint.

The reference to Joint Sections No. 25080/2003 is noteworthy, which had already allowed immediate appeal against incidental provisions with a "decisive content and definitive character" on procedural legal positions.

Practical Implications for Defense and Prosecuting Offices

The ruling requires a review of procedural strategies:

• The defense can consolidate both the judgment and the rejection order into a single appeal document, avoiding the risks of inadmissibility due to separate late filing.
• Public prosecutors will need to provide particularly accurate reasoning for opposing requests for restorative justice, knowing that the Court of Cassation can review their legitimacy.
• Trial judges will need to adequately justify, in their decisions, the "interests of the parties, the victim's protection needs, and the dangerousness of the act," to prevent future challenges.

From the victims' perspective, this opens up the possibility of more effective involvement in mediation processes, even in proceedings for serious offenses, without fearing the loss of the right to complain.

Conclusions

Judgment No. 14338/2025 strengthens the role of restorative justice in criminal proceedings, ensuring full protection of the defendant's right to access it and, at the same time, outlining clear criteria for appealing any denial. The principle of procedural economy thus aligns with the principle of effective defense, offering a straightforward and guaranteed path to assert one's rights before the Supreme Court. It remains to be seen how the trial courts will implement this warning, while awaiting definitive clarification from the legislator on the exhaustive nature of appealable acts in this matter.