Amendments to the Probation Program: The Supreme Court, ruling no. 15159/2025, reiterates the defendant's obligation to consent

With ruling no. 15159 of February 25, 2025 (filed April 16, 2025), the Fifth Criminal Section of the Supreme Court of Cassation returns to the delicate issue of the suspension of proceedings with probation for the defendant, provided for by articles 464-bis et seq. of the Code of Criminal Procedure. The Supreme Court annuls without referral the order of the Preliminary Hearing Judge of Chieti, reaffirming that any integration or modification of the treatment program prepared by the External Criminal Enforcement Office (UEPE) must be adopted by the judge only with the defendant's consent, express or tacit. In its absence, a general nullity occurs, pursuant to art. 178, letter c), of the Code of Criminal Procedure, as it infringes the right to defense.

The Regulatory Framework for Probation

Introduced in 2014, probation represents one of the main instruments of restorative justice in the Italian criminal proceedings. The institute allows for:

• the suspension of proceedings;
• the defendant's placement in a personalized treatment path;
• the possibility of the offense being extinguished following a positive outcome.

Article 464-quater, paragraph 4, of the Code of Criminal Procedure provides that the judge may supplement or modify the treatment program, but the rule, read systematically with articles 464-bis and 178 of the Code of Criminal Procedure, requires the active involvement of the defendant, in order to guarantee adversarial proceedings and protect the right to defense enshrined in Article 24 of the Constitution and Article 6 of the ECHR.

The Procedural Facts and the Supreme Court's Decision

In the case examined, the Preliminary Hearing Judge had ex officio made some substantial changes to the treatment plan, without obtaining the consent of the defendant R. P. M. S. G. The Supreme Court deemed this conduct to be in violation of the protective fabric of the procedure, annulling the contested order and declaring the offense extinguished.

In the matter of suspension of proceedings with probation, the order by which the judge supplements or modifies, pursuant to art. 464-quater, paragraph 4, of the Code of Criminal Procedure, the treatment program drawn up by the external criminal enforcement office must be adopted with the defendant's consent, even if tacit, failing which a nullity, of a general intermediate nature, occurs due to violation of the right to defense.

The maxim, clearly formulated, highlights two crucial points: first, the necessity of consent, which can also be tacit (for example, by not objecting in court); second, the procedural sanction of nullity – not merely relative – which requires the act to be redone and, in cases where this is no longer possible, the declaration of extinction of the offense.

Practical Implications for Defense Counsel and Judges

The ruling is part of an ongoing trend (Cass. nn. 27249/2020, 4761/2020) and provides clear operational guidance:

• Mandatory Verification Hearing: any modification must be discussed in adversarial proceedings, ensuring the defendant has the opportunity to express themselves.
• Tacit but Unequivocal Consent: tacit consent must emerge from conclusive behavior; mere silence outside the courtroom is not sufficient.
• Burden of Record-Keeping: the judge must note this in the decision, under penalty of nullity.
• Role of the UEPE: the supplementary report must be shared with the defense counsel, who may submit observations.

For defense counsel, monitoring every phase of interaction with the UEPE becomes essential to avoid unfavorable, unagreed-upon modifications. For Preliminary Hearing Judges, on the other hand, the ruling serves as a reminder that procedural efficiency can never compromise participatory guarantees.

Conclusions

The Supreme Court, with ruling no. 15159/2025, strengthens the protective framework of probation, emphasizing the principle of consent that permeates the institute. The message is unequivocal: without the conscious participation of the defendant – an active party in their own path to accountability – judicial intervention loses its validity. Defense counsel, magistrates, and the UEPE are therefore called upon to engage in constant and transparent dialogue, in line with restorative justice and respect for fundamental rights.