Criminal Cassation No. 15175/2025: Limits to Preliminary Reference on Territorial Jurisdiction

The judgment rendered by the Fifth Criminal Section of the Court of Cassation (No. 15175/2025, filed April 16, 2025, Pres. P. R., Rapporteur E. V. S.) is part of the lively debate on the scope of Article 24-bis of the Code of Criminal Procedure, introduced by the Cartabia reform. The case revolves around the possibility for the judge for preliminary investigations to refer the issue of territorial jurisdiction to the Supreme Court before the opening of the trial. The judges of legitimacy, declaring the preliminary reference raised by the GIP of Milan inadmissible, provide a valuable clarification destined to impact defense strategy in complex criminal proceedings.

The Procedural Case and the Knot of Jurisdiction

The proceeding originated from the charge of patrimonial infidelity under Article 2634 of the Civil Code, contested against company directors. However, the indictment described the facts in an ambiguous manner, leaving open the question of whether the conduct should be classified as a single action or a plurality of distinct acts. This uncertainty was reflected in territorial jurisdiction: depending on the reconstruction of the facts, the competent forum would have been Milan or the location of other alleged illicit episodes. The GIP, deeming the issue decisive, asked the Cassation Court to rule preliminarily under Article 24-bis of the Code of Criminal Procedure on the correct identification of the competent judge.

The Principle of Law Affirmed

Indictment giving rise to divergent interpretations - Preliminary reference to the Court of Cassation – Admissibility - Exclusion - Case law. A preliminary reference to the Court of Cassation for a decision on territorial jurisdiction is precluded when the facts described in the indictment, which determine the choice of the territorially competent judge, give rise to divergent interpretations or further factual assessments. (Case in which the wording of the indictment did not allow the commission of the acts of patrimonial infidelity attributed to the defendants, under Article 2634 of the Civil Code, to be attributed to a single or multiple conducts).

In simpler terms, the Court established that a preliminary reference cannot be transformed into an "anticipatory trial" on the merits. If the answer regarding jurisdiction requires factual interpretations – such as determining where and when each criminally relevant conduct occurred – the natural venue for such an assessment remains the trial, not the legitimacy judgment. The reference to Article 9 of the Code of Criminal Procedure (criteria for territorial jurisdiction) and Article 24-bis of the Code of Criminal Procedure clarifies that the latter instrument is reserved for questions of pure law, already factually defined.

Practical Implications for Defense and Prosecution

• Procedural Timelines: the defense can no longer rely on a preliminary reference to "block" proceedings pending a decision from the Cassation Court when factual uncertainties persist.
• Drafting Strategy of the Indictment: the public prosecutor must describe the facts precisely to avoid disputes over jurisdiction that could slow down the process.
• Positive and Negative Conflicts of Jurisdiction: the possibility of raising a conflict under Article 28 of the Code of Criminal Procedure remains, but the Cassation Court will intervene only after differing decisions by trial judges, not "upstream."
• Defendant's Guarantees: the exclusion of the preliminary reference does not infringe the right to defense, as complete factual assessments will still be made, but before the judge established by law.

Conclusions

Judgment No. 15175/2025 is in line with previous rulings (Cass. Nos. 10703/2024, 11400/2024, 46181/2023) that tend to delimit the scope of application of Article 24-bis of the Code of Criminal Procedure. The message from the Supreme Court is clear: the preliminary reference is an exceptional tool, designed for questions of pure law; it cannot be used to compensate for gaps in the indictment or to anticipate assessments of the merits. This is a warning, therefore, both to judges, who are called to use the institute rigorously, and to legal professionals, who will have to carefully calibrate preliminary exceptions so that they do not translate into inadmissible procedural "shortcuts."