Criminal Cassation no. 10377/2025: limits of the referral judgment and preclusions on the elements of the crime

With decision no. 10377/2025, filed on March 14, 2025, the VI Section of the Court of Cassation returned to a classic but by no means obvious theme: the scope of the referral judgment after the annulment of an acquittal judgment appealed only in part. The case, which involved the defendant O. M., offers an opportunity to take stock of a procedural principle of considerable practical importance for defense lawyers and public prosecutors.

Procedural Context

The Court of Appeal of Milan had acquitted the defendant for lack of the subjective element of the crime. The Public Prosecutor's Office had appealed the decision solely on this aspect, believing that intent was present. The Court of Cassation, called upon to judge the appeal, ruled on the possibility of extending the new judgment also to the objective element, which had not been contested on appeal.

The Ruling's Maxim

An appeal to the Court of Cassation against an acquittal judgment, rendered due to the lack of the subjective element of the crime, following an appeal lodged solely on this aspect, creates a preclusion on the ascertainment of the objective element and on the legal qualification of the crime, so that any annulment must concern exclusively the point subject to the appeal and the subsequent judgment must focus exclusively on the deliberative perimeter established by the rescinding pronouncement. (In its reasoning, the Court specified that the referral judgment may also concern other points of the appeal not directly affected by the rescinding judgment, provided they are consequential aspects with respect to the object of the annulment and not already definitively settled in previous degrees or phases of the proceedings).

In simpler terms, the Court states that if the Public Prosecutor's Office limits the appeal to contesting the lack of intent (or negligence), it implicitly waives the right to discuss the existence of the act or its legal qualification. Consequently, in the event of annulment, the referring judge will no longer be able to touch upon those aspects, which have now become covered by an internal judgment.

Operational Implications for Defense and Prosecution

The decision is based on articles 597 and 609 of the Code of Criminal Procedure, as well as on consistent case law (Sez. Un. no. 10/2000; Cass. no. 36370/2019). This has significant strategic effects:

• Clarity of grounds for appeal: those who appeal must evaluate from the outset all aspects they intend to contest, because a partial appeal crystallizes the *thema decidendum*.
• Protection of the principle of reasonable duration: limiting the referral to what is necessary avoids duplicative investigations and reduces the duration of the proceedings.
• Guarantee of adversarial proceedings: the opposing party does not suffer surprises on issues already considered final.

From a defense perspective, the ruling offers a solid argument to object to the inadmissibility of renewed challenges to the objective element after a partial annulment. For the Public Prosecutor's Office, on the other hand, it serves as a warning to appeal fully if it considers an acquittal on multiple fronts to be unjustified.

Domestic and European Legal Aspects

The principle of "preclusion" is also confirmed in the case law of the ECtHR: the Strasbourg Court (e.g., *Krajnc v. Slovenia*, 2017) has repeatedly recognized that substantial *ne bis in idem* extends to decisions that have become final on points not appealed. At the domestic level, the combined provisions of articles 607, paragraph 3, and 637, paragraph 3, of the Code of Criminal Procedure stipulate that annulment can only concern the parts of the judgment specifically challenged, while the rest remains unchanged.

Conclusions

Ruling no. 10377/2025 reiterates a principle of criminal procedure law destined to affect the strategic choices of the parties: the object of the appeal defines the future judgment. A selective appeal leads to an equally selective referral. Ultimately, the Court of Cassation calls upon all legal operators for greater precision in the grounds for appeal, in the interest of swifter and more predictable justice.