Rescission of Judgment and Reinstatement in Term: Cassation No. 10996/2025 Clarifies the Differences

On March 19, 2025, the Court of Cassation, Fifth Criminal Section, filed ordinance No. 10996/2025 which, while declaring the appeal of L. K. inadmissible, re-examines two remedies often confused: rescission of judgment and reinstatement in the term for appeal. The ruling offers practical insights of immediate utility for legal professionals.

The Core of the Ruling

The appellant had requested the annulment of the judgment in absentia, alleging a violation of Article 420-bis of the Code of Criminal Procedure. The Court, in rejecting the appeal, reiterated in its reasoning the distinguishing criteria between the two institutes, providing a veritable vademecum for legal practice.

In matters of appeals, rescission of judgment differs from reinstatement in the term for appeal in nature, scope of application, "petitum," and achievable effects. (In its reasoning, the Court, in outlining the differences, specified: regarding the scope of application, that the request for rescission can be made in all cases where the trial in absentia took place without the prerequisites provided for by Article 420-bis of the Code of Criminal Procedure, while the request for reinstatement cannot be exercised in cases where the notification was made to the defendant or to a person delegated by them, and in cases where the defendant has expressly waived appearance or the assertion of any legitimate impediment; regarding the object of proof, that, in the first case, the applicant is required to prove that the absence was declared without the prerequisites provided for by Article 420-bis of the Code of Criminal Procedure, while, in the second, they are required to demonstrate that they did not have effective knowledge of the proceedings; regarding the effects, that rescission, unlike reinstatement in the term, entails the regression of the proceedings to the degree and phase in which the nullity occurred).

Translated into simple terms, the maxim highlights that rescission and reinstatement are not interchangeable: the former aims to "rewind" the proceedings when the absence was declared illegitimately; the latter only allows for the recovery of a lost appeal term without affecting the judgment on the merits.

Regulatory and Jurisprudential Aspects

Rescission of judgment (Article 629-bis of the Code of Criminal Procedure) was introduced to align Italian procedure with EU and ECHR case law, which places the defendant's effective participation at the center (see Sections U, 36848/2014). Reinstatement in the term (Article 175 of the Code of Criminal Procedure), on the other hand, was revised by the "Cartabia reform" (Legislative Decree 150/2022) to ensure a balance between reasonable duration and the right to defense.

• Objective Prerequisite: violation of Article 420-bis of the Code of Criminal Procedure for rescission; lack of knowledge of the proceedings for reinstatement.
• Burden of Proof: proof of the absence of prerequisites for absence versus proof of lack of effective knowledge.
• Effects: regression of the judgment to the flawed phase versus simple reopening of appeal terms.

Among the most relevant decisions that anticipated today's ordinance are Cass. 23882/2014, 12630/2015, 10000/2017, and 20899/2023, all in agreement in clearly differentiating the two institutes.

Practical Implications for Defense

For the criminal lawyer, choosing the correct remedy is decisive. Before proposing rescission, it is necessary to verify:

• whether the original notification was carried out in non-compliant forms;
• whether the defendant ever delegated anyone to receive the document;
• the degree and procedural phase in which the nullity occurred.

Should notification to the defendant or express waiver of appearance emerge, rescission is precluded, and the defense must opt for reinstatement in the term, demonstrating the absence of effective knowledge.

Conclusions

Ordinance No. 10996/2025 represents a very useful reminder: confusing rescission of judgment and reinstatement in the term can prejudice the entire defense strategy. Knowing the prerequisites, burdens, and effects of each institute allows for safeguarding the right to participate in the proceedings without unnecessarily burdening the appeal system.