Opposition to the penal decree and the burden of pleading according to the Supreme Court of Cassation no. 12842/2025

With ruling no. 12842, filed on April 3, 2025, the Supreme Court returns to address Article 175, paragraph 2, of the Code of Criminal Procedure (c.p.p.), concerning the restitution in term for filing an opposition to a penal decree of conviction. The case originated from a decree served by completed deposit against S. J., who, beyond the legal deadline, requested to be reinstated in term without explaining the reasons for the lack of actual knowledge of the act. The Preliminary Investigations Judge (GIP) of Vicenza had declared the request inadmissible; a decision now confirmed by the Supreme Court of Cassation.

The core of the decision

In matters of restitution in term for filing an opposition to a penal decree of conviction, where the applicant fails to fulfill the burden of pleading the reasons for the lack of actual knowledge of the duly served measure, the judicial authority may legitimately reject the request without conducting any verification in this regard.

The maxim highlights two key aspects: the burden of pleading on the defendant and the judge's ability to reject the request de plano if this burden is not met. Therefore, no ex officio investigation into the actual knowledge of the decree is necessary if the applicant remains silent.

The regulatory framework: Articles 175 and 462 of the c.p.p.

Article 175, paragraph 2, provides that anyone who has not had knowledge of the act "due to fortuitous event, force majeure, or ignorance not attributable to fault" may request restitution in term. However:

• the request must be documented or otherwise substantiated;
• the burden of proving the impediment lies with the applicant;
• the judge assesses ex actis, without having to initiate independent investigations.

The combined provisions with Article 462 (which governs opposition to the penal decree) reinforce the need for speed: the pre-trial phase does not tolerate unjustified delays. The Constitutional Court, with order no. 30/2024, has also confirmed the legitimacy of the approach that places the burden of proving the absence of fault on the defendant.

Consistent case law and comparative notes

The ruling is part of a consistent line of case law (Cass. 22509/2018, 3882/2018, 12099/2019, 6900/2021) that values the deflative purpose of the penal decree. In the European context, the European Court of Human Rights (ECtHR) allows strict procedural deadlines as long as they do not compromise the right to defense: the decision therefore appears to be in line with Article 6 of the ECHR, as the defendant retains the possibility of asserting grounds for non-knowledge, provided they are raised promptly.

Practical implications for defendants and defense counsel

The ruling offers operational insights:

• at the first meeting, the defense counsel must verify the methods and dates of notification of the decree;
• the request pursuant to Article 175 of the c.p.p. must be accompanied by documents (e.g., hospitalization, absence abroad, involuntary unavailability);
• any notification defects invalidate the effectiveness of the notification itself, but if the notification is regular, only the path of "non-culpable" impediment remains.

In the absence of such elements, rejection will be almost automatic, leading to the decree becoming final and its registration in the criminal record.

Conclusions

The Supreme Court of Cassation reiterates that restitution in term is not an "automatic" remedy but an exceptional one, subject to a precise burden of pleading. For defendants and legal professionals, this translates into an imperative of diligence: monitoring notifications, acting promptly, and meticulously substantiating every request for reinstatement in term. Only in this way can the right to defense be balanced with the need for speed in criminal proceedings.