Judgment Cass. pen. no. 9578/2025: Nullity of the "de plano" declaration of non-punishability pursuant to art. 129 c.p.p.

With ruling 9578/2025, the Court of Cassation, Fifth Criminal Section, addresses a topic of great practical interest: the possibility for the judge, during the investigation phase, to immediately declare non-punishability pursuant to art. 129 c.p.p. at the request of the public prosecutor. The case originated in Bergamo and concerns the position of K. G., but its effects extend beyond the specific case, touching the core of procedural guarantees.

The core of the decision: the scope of art. 129 c.p.p.

Art. 129 c.p.p. allows the judge to issue a acquittal judgment whenever a cause for non-punishability is evident. However, the Court recalls that the provision applies at any stage and level of the proceedings only after criminal action has been initiated. Pronouncing "de plano" during the investigation phase, at the request of the Public Prosecutor, is equivalent to skipping an essential procedural step: the closure of preliminary investigations with a request for dismissal or a summons to trial.

The official maxim and its meaning

A judgment of non-prosecution due to the existence of a cause for non-punishability adopted "de plano" by the judge following a request by the public prosecutor made before the initiation of criminal action is affected by a general nullity of intermediate regime. In other words, the Court clarifies that the immediate ascertainment of a cause for non-punishability is possible only when the trial has already been instituted; if it occurs before, the principle of the exhaustiveness of procedural forms is violated, with the consequence of a nullity that can be invoked up to the first-instance judgment (arts. 178, 180 c.p.p.).

The Cassation's line of reasoning

The judges of legitimacy, referring to Joint Sections no. 12283/2005 and judgment no. 45049/2008, reiterate that:

• the Public Prosecutor holds the monopoly of criminal action (art. 50 c.p.p.);
• the suspect has the right to adversarial proceedings on the outcome of investigations (art. 111 Cost., art. 415-bis c.p.p.);
• skipping the dismissal filter deprives the suspect of this guarantee;
• the nullity is "intermediate": not absolute, but still capable of overturning the judgment if timely raised.

This leads to the annulment without referral of the Bergamo decision and the return of the case files to the Public Prosecutor, so that they may choose between initiating criminal action or requesting dismissal (art. 407-bis c.p.p.).

Practical implications for defense lawyers and Public Prosecutors

For defense lawyers, the judgment represents a protective tool: if the Preliminary Investigations Judge issues a "de plano" order of non-punishability before the trial phase, nullity can be pleaded on appeal or in cassation. The Public Prosecutor, for their part, must avoid premature requests that could lead to appeals and renewed proceedings, with a waste of resources and time.

Even the European legislator, with Directive (EU) 2016/343 on the right to a fair trial, values the preliminary phase as a moment of guarantee: the ruling under comment is fully compliant with these principles.

Conclusions

The Court of Cassation, with judgment no. 9578/2025, reiterates that efficiency cannot sacrifice the essential forms of criminal proceedings. Immediate acquittal pursuant to art. 129 c.p.p. is an institute of guarantee, not an accelerated channel for closing investigations: anticipating it entails nullity. Defense lawyers, judges, and public prosecutors must take this into account, under penalty of having to start over with inevitable procedural and social costs.