Waiver of Conditional Suspension: Cassation No. 16052/2025 Defines the Scope of the Defendant's Autonomy

The Second Criminal Section of the Court of Cassation, with judgment no. 16052 of February 18, 2025 (filed April 28, 2025), addressed a topic that is only apparently niche but in reality crucial for defensive strategy: the possibility of waiving the benefit of conditional suspension of the sentence already granted in a judgment. The Supreme Court, accepting the appeal of the Public Prosecutor General against the decision of the Court of Appeal of Catania, clarified that such a waiver constitutes a genuine act of disposition concerning the defendant's personal rights and, as such, cannot be made by the defense counsel unless they are equipped with a specific ad hoc power of attorney.

The Nature of the Waiver: Act of Disposition and Personal Right

In matters of conditional suspension of sentence, the waiver of the benefit already granted has the legal nature of an act of disposition, affecting the sanctioning treatment, which constitutes an initiative exceeding the choices of technical defense, pertaining to personal rights, as per art. 99, paragraph 1, of the Code of Criminal Procedure, exercisable, as such, only by the defendant and not by their defense counsel, unless the latter is equipped with a specifically issued special power of attorney.

The above maxim crystallizes the core principle of the decision: waiving conditional suspension is not a purely technical choice, but directly affects the punitive treatment and requires the express will of the defendant. Article 163 of the Criminal Code regulates the benefit, while Article 99, paragraph 1, of the Code of Criminal Procedure reserves to the defendant the ownership of acts concerning personal rights. It follows that the defense counsel, holder of a "general" mandate, cannot unilaterally sacrifice their client's interest in maintaining the suspensive effect of the sentence.

Special Power of Attorney and Limits of the Defense Mandate

The Cassation Court continues in line with previous consistent rulings (Cass. 11104/2014; 45583/2024; 2223/2025), reiterating a twofold constraint:

• the defense counsel can waive the benefit only if equipped with a specific special power of attorney that expressly refers to the act of waiver;
• in its absence, the judge must consider the waiver inadmissible, as happened in the present case, with the consequent persistence of the suspension.

The special power of attorney therefore constitutes the formal instrument through which the defendant's will is expressed. Without this act, any declaration made by the lawyer is legally ineffective, as it is a decision that goes beyond "technical defense" and involves the sphere of personal freedom.

Practical Implications for Lawyers and Defendants

For law firms assisting defendants, the ruling imposes certain operational precautions:

• fully inform the client about the consequences of any waiver (e.g., immediate execution of the sentence, preclusion of non-mention);
• obtain an ex ante detailed special power of attorney if the procedural strategy foresees a waiver, for example, to obtain alternative benefits (community service, probation);
• verify the actual existence of the benefit in the appeal phase: the waiver might not be necessary if the second-instance judge redefines the sanctioning treatment.

No less important is the dialogue with the Public Prosecutor: the waiver could be functional to an agreement on the application of more favorable measures or on a plea bargain for the execution of the sentence. However, the absence of a special power of attorney exposes to challenges in the supreme court, with the risk of annulment and increased time and costs.

Conclusions

Judgment no. 16052/2025 reinforces the principle that, in matters of personal freedom and sanctioning treatment, the defendant's will remains sovereign. The defense counsel, while retaining a central role in the procedural strategy, must act within the perimeter defined by art. 99 of the Code of Criminal Procedure, equipping themselves with a special power of attorney when intending to affect personal rights. For professionals, this translates into the need for careful documentary planning and constant client involvement. For defendants, however, the decision offers an additional guarantee that their procedural position cannot be altered without express and informed consent.