Cassation Sentence no. 9154/2025: Consent to a Substitute Penalty is Insufficient Without a Specific Ground of Appeal

With decision no. 9154 of January 30, 2025 (filed March 5, 2025), the Sixth Criminal Section of the Court of Cassation revisits the topic of substitute penalties for short custodial sentences, introduced by the "Cartabia reform" and further refined by Legislative Decree 31/2024. The ruling, which concerned defendant C. P. M. C. A., rejects the appeal against the sentence of the Court of Appeal of Naples of May 2, 2024, but above all provides a firm point: the defendant's mere consent expressed by the participatory hearing, as provided for by art. 598-bis, paragraph 4-bis, of the Code of Criminal Procedure, is not sufficient if the substitution has not been referred to the second-instance judge with a specific ground of appeal.

The Regulatory Context: From the Cartabia Reform to Legislative Decree 31/2024

Legislative Decree 150/2022 introduced a comprehensive discipline of substitute penalties into the Criminal Code and Code of Criminal Procedure, providing for access to measures other than imprisonment for sentences up to three years. With the subsequent Legislative Decree 31/2024, the legislator amended art. 598-bis of the Code of Criminal Procedure, establishing that the defendant may express consent to the substitution "up to the date of the participatory hearing" even on appeal.

Many wondered if this option made an appeal on that point superfluous. The sentence under review dispels all doubt, reaffirming the centrality of the principle of devolution of appeal enshrined in arts. 597 and 598-bis of the Code of Criminal Procedure.

In the matter of substitute penalties for short custodial sentences, the option granted to the defendant by art. 598-bis, paragraph 4-bis, of the Code of Criminal Procedure, introduced by art. 2, paragraph 1, letter z), no. 3), of Legislative Decree March 19, 2024, no. 31, to express consent to the substitution of the penalty up to the date of the participatory hearing, does not eliminate the need for the issue to be referred to the Court of Appeal through a specific ground of appeal, with the main appeal document or with new grounds. (Case not regulated "ratione temporis" by the transitional provisions of art. 95 of Legislative Decree October 10, 2022, no. 150).

The Court refers to its previous rulings (Cass. 42825/2024; SU 12872/2017) and states that the logic of devolution "upon request of the party" remains intact: if the request is not conveyed by a ground of appeal, the territorial court cannot rule on it.

Practical Implications for the Defense

• The defense counsel must formulate an ad hoc ground for substitution, under penalty of inadmissibility.
• The defendant's consent, if not accompanied by the ground, has no procedural effect.
• It is possible to supplement the appeal document with new grounds pursuant to art. 598-bis, paragraph 4, of the Code of Criminal Procedure, within the foreseen terms.
• The transitional provisions of art. 95 of Legislative Decree 150/2022 do not apply to proceedings opened after the entry into force of Legislative Decree 31/2024.

The sentence calls for greater editorial attention in appeal documents: the request for substitution must be substantiated, indicating the prerequisites referred to in art. 20-bis of the Criminal Code (gravity of the offense, defendant's personality, social prognosis).

European and Constitutional Law Aspects

The Cassation's orientation appears consistent with art. 6 ECHR, which guarantees the right to a fair trial but does not impose ex officio investigative powers on the appellate judge beyond the grounds presented. Internally, the decision is in line with art. 111 of the Constitution and with constitutional case law on the function of appeal as a "process with constrained review" (Constitutional Court, sentence 50/2020).

Conclusions

Sentence no. 9154/2025 reiterates that the effectiveness of substitute penalties depends on the precision of defense documents: the legislator has expanded the scope for alternative measures, but it is up to the parties to act punctually. For lawyers, this means preparing dedicated grounds of appeal, highlighting factual and legal elements that make the substitution convenient and consistent with the rehabilitative purposes enshrined in art. 27 of the Constitution. Inattention to this aspect can preclude the client from accessing less burdensome sanctions, exposing them to a custodial sentence that, by law, could have been avoided.