Cass. pen. Judgment no. 13298/2025: The Appellate Judge's Discretion in Substituting Short Custodial Sentences

With decision no. 13298, filed on April 7, 2025, the Fifth Criminal Section of the Court of Cassation revisited the issue of substitute penalties applicable to custodial sentences of up to three years. The case, originating from the Court of Appeal of Milan, concerned M. C., whose sentence was reduced below the legal threshold without any substitution being ordered. The defendant objected to the ex officio non-application of an alternative measure, but the Supreme Court rejected the ground, offering relevant insights for lawyers and legal professionals.

Regulatory Context: Short and Substitute Custodial Sentences

The Cartabia reform (Legislative Decree 150/2022) reorganized Article 53 of Law 689/1981, establishing that for custodial sentences up to three years, the judge may apply substitute penalties such as community service, semi-custody, or home detention. These measures pursue the rehabilitative purposes referred to in Article 27 of the Constitution, reducing prison overcrowding in line with ECHR recommendations.

Before the judgment under review, jurisprudence oscillated between the idea that the judge had a genuine obligation to verify the possibility of substitution (cf. Cass. 19326/2015) and that of a simple discretionary power (Cass. 33027/2023). The 2025 ruling consolidates the latter orientation.

The Cassation Ruling

In matters of substitute penalties for short custodial sentences, the appellate judge, in the event of a reduction of the sentence imposed in the first instance below the legal limit, is not obliged to activate the penalty substitution mechanism ex officio. (In its reasoning, the Court stated that the appellate judge is recognized a discretionary power, which can be exercised even without an explicit request from the interested party; in the absence of such a request, the failure to exercise this power does not result in the nullity of the judgment).

Comment: The maxim highlights that the legislator has not transformed the power of substitution into an obligation. Consequently, the absence of a substitute measure does not invalidate the appellate judgment, unless the defense has made a specific request that was rejected without justification.

The judges refer to Article 177-bis of the Code of Criminal Procedure and Article 31 of Legislative Decree 150/2022, emphasizing that substitution constitutes a faculty based on assessments of merit (Article 133 of the Criminal Code): the offender's personality, the seriousness of the offense, and subsequent conduct. Therefore, even in the face of a sentence of less than three years, the application of an alternative measure requires a balancing of interests, which can legitimately result in the retention of the custodial sentence.

Practical Implications for the Defense

• Express Request: The party must specifically request the substitution, providing evidence of conduct and remorse.
• Burden of Proof: If the request is made, the judge must provide reasons for the denial; otherwise, nullity cannot be established.
• Procedural Strategy: It is advisable to submit documentation regarding the defendant's work, studies, or family commitments to demonstrate the suitability of alternative penalties.
• Effects in Cassation: An appeal can only succeed by demonstrating a lack of assessment, not the mere absence of substitution.

Conclusions

Judgment 13298/2025 confirms that, in the landscape of substitute penalties, judicial discretion remains broad. For defense lawyers, this translates into an onus of initiative: without a well-articulated request, the appellate judge's omission is not subject to review. The substitution option, therefore, is not automatic but depends on concrete elements that the defense must bring to the judge's attention, leveraging the tools offered by recent reforms and the Constitution.