Cassation Court Ruling No. 13794/2025: "Aggravated" Recidivism Blocks Sentence Prescription
With decision No. 13794, filed on April 8, 2025, the Court of Cassation revisited a matter of significant practical importance: the extinction of a sentence due to the passage of time and its limitations for individuals declared "aggravated" recidivists under Article 99, paragraph 4, of the Italian Criminal Code (c.p.). The case originated from the appeal filed by F. B., whose conviction had been upheld by the Court of Appeal of Naples on November 15, 2024. The decisive point concerned the possibility of invoking the prescription of the sentence despite the qualified recidivism.
Reference Legal Framework
Article 172 of the Criminal Code governs the extinction of a sentence due to the passage of time: the ordinary terms are 5, 10, or 30 years depending on the duration of the imposed sanction. However, paragraph 7, introduced in 2005, establishes a preclusion for "aggravated" recidivists, meaning those who fall under the hypotheses of repeated or infra-quinquennial recidivism as defined in Article 99, paragraphs 2-4, of the Criminal Code. The rationale is to prevent individuals with significant social dangerousness from evading the execution of their sentence solely due to the passage of time.
- Article 172 c.p.: general provisions on sentence prescription.
- Article 99 c.p.: definition and gradation of recidivism.
- Article 173 c.p.: causes for suspension and interruption of the term.
Principle Affirmed by the Supreme Court
In matters of sentence extinction due to the passage of time, the preclusion for so-called "aggravated" recidivists under Article 172, seventh paragraph, first sentence, of the Criminal Code does not require that the qualified recidivism be declared by a judgment concerning offenses committed during the period of sentence prescription.
The Court, referencing rulings No. 4095/2020 and No. 36906/2024, clarified that the impossibility of invoking prescription operates ex lege from the moment the "aggravated" recidivism is ascertained, regardless of when the new offenses were committed. Therefore, it is not necessary for the judgment declaring recidivism to concern acts committed "during" the prescription period; it is sufficient that the defendant has the status of a recidivist at the time of verification.
The reasoning is based on two pillars:
- Literal interpretation: paragraph 7 of Article 172 does not link the preclusion to a temporal connection between the original conviction and subsequent offenses.
- Preventive purpose: to exclude prescription for individuals considered more socially dangerous, in accordance with Article 27 of the Constitution and Article 3 of the European Convention on Human Rights (jurisprudence Daniels v. Netherlands).
Operational Implications for Defenders and Defendants
The ruling has concrete implications for the management of the execution phase:
- Defense counsel must promptly verify the presence of "aggravated" recidivism in criminal record certificates before raising exceptions of sentence prescription.
- Public Prosecutors, responsible for execution, can oppose requests for extinction by highlighting recidivism even if ascertained ante or post the expiry of the term.
- For convicted individuals, alternative measures such as requests for alternative measures (probationary release, house arrest) remain viable, which, unlike prescription, are not precluded by recidivism.
Conclusions
Ruling No. 13794/2025 consolidates an approach that prioritizes the preventive and rehabilitative function of punishment over a "rewarding" use of prescription. For criminal law practitioners—lawyers, judges, and consultants—it becomes essential to thoroughly investigate the client's recidivism status before formulating the defense strategy. At the same time, the legislator is urged to implement systemic interventions that balance the effectiveness of criminal execution with the guarantees of reasonable duration and legal certainty.
