Cassation Court Ruling no. 11670/2025: The Thin Line Between Stalking and Mistreatment on Appeal

With decision no. 11670, filed on March 24, 2025, the Sixth Criminal Section of the Court of Cassation offers a new interpretative piece on the theme of the correlation between accusation and sentence. The case arose from an appeal judgment initiated by the defendant alone – convicted in the first instance for acts of persecution – in which the territorial court reclassified the act as mistreatment of family members or cohabitants. The Supreme Court was called upon to determine whether such an intervention «in peius» was compatible with articles 521 and 597, paragraph 3, of the Code of Criminal Procedure (c.p.p.) and, more generally, with the right to a fair trial guaranteed by art. 6 of the ECHR.

The Court's Maxim

Appeal judgment – Appeal by the defendant alone – Reclassification of the crime under art. 612-bis of the Criminal Code (c.p.) to that provided for by art. 572 of the Criminal Code (c.p.) – Possibility – Existence – Conditions.

In other words, for the Cassation Court, the second-instance judge can change the title of the crime to a more serious one if – and only if – three conditions are met:

• the new classification must be foreseeable in light of the original charge and the evidentiary material;
• the defendant must have been put in a position to defend himself effectively (also through appeal to the Cassation Court);
• it must not result in a more severe sanction, avoiding any violation of the prohibition of reformatio in peius.

The Supreme Court's Reasoning

The Sixth Section first refers to art. 111, paragraph 2, of the Constitution and art. 6 of the ECHR: the principle of correlation is respected if the defendant can «reasonably» foresee the outcome of the trial. In this case, the conduct described – repeated episodes of domestic violence culminating in obsessive controls – made the constituent elements of the two crimes superimposable, both based on a sequence of acts infringing the victim's freedom and psychophysical integrity.

The Cassation Court further emphasizes that an appeal to the Cassation Court ensures an additional space for adversarial proceedings: the defendant can contest the reclassification and introduce new defense arguments. Therefore, it is not necessary to order the remission of the case pursuant to art. 521, paragraph 2, of the c.p.p., unless a concrete violation of the right to defense emerges.

Applicative Aspects and Impact on Practice

The decision follows the path of previous rulings (Cass. no. 422/2020, 45400/2022, and 26263/2024), but expands the operational scope of the appellate judge. For legal professionals, this leads to some practical indications:

• Defenders: evaluate the possible overlap between «contiguous» crime categories from the preliminary hearing onwards, preparing evidence suitable for excluding the more serious offense.
• Public Prosecutor (P.M.): formulate alternative or subordinate charges to avoid exceptions of unforeseeability.
• Judges: provide detailed reasoning on foreseeability and the non-aggravation of the sanction.

Regarding sanctions, it should be noted that art. 612-bis provides for a penalty of 1 to 6 years, while art. 572 ranges from 3 to 7 years. However, the Cassation Court considers the prohibition of in peius respected if – as in the present case – the penalty imposed on appeal still falls within the original maximum statutory penalty.

Conclusions

Ruling no. 11670/2025 consolidates an approach that tends to favor substantial truth over the rigidity of charges, while upholding the safeguards of defense rights. For criminal lawyers, this is a warning: an appeal filed «to escape» a conviction can become a slippery slope if all possible reclassifications are not adequately addressed. For its part, the judiciary strengthens its dialogue with the ECHR, demonstrating how procedural efficiency and individual guarantees can be reconciled.