Overturning Acquittal on Appeal: The Court of Cassation and Nullity for Omitted Renewal of Evidence (Judgment no. 9128/2025)

In the complex landscape of criminal procedural law, the appeal phase holds crucial importance, serving as the second level of judgment for reviewing first-instance decisions. However, the appeal judgment is not always a mere replica of the previous one; it has specific rules, especially when it comes to overturning an acquittal. Recently, the Court of Cassation, with judgment no. 9128 filed on March 5, 2025 (President G. A., Rapporteur S. C.), has provided fundamental clarifications on the limits of deductibility of nullity arising from the omitted renewal of testimonial evidence, in cases of overturning an acquittal. This decision, which concerned the defendant S., declares a recourse against a decision of the Court of Appeal of Naples inadmissible, emphasizing core principles of our legal system.

The Principle of Renewal of Testimonial Evidence on Appeal

The heart of the matter lies in the application of Article 603, paragraph 3-bis, of the Code of Criminal Procedure (c.p.p.). This rule, introduced to strengthen defense guarantees and implement the principles of a fair trial, requires the appellate judge who intends to overturn a first-instance acquittal, based on a different assessment of testimonial evidence, to order the renewal of the evidentiary proceedings. In other words, if the Court of Appeal wishes to declare guilty a defendant previously acquitted, and to do so must reinterpret testimonies or statements made in the first instance, it must re-hear those individuals directly. The objective is twofold: to ensure the principle of adversarial proceedings in the formation of evidence and to allow the judge to form a conviction through direct contact with the source of evidence, capturing nuances and attitudes that the mere reading of the documents cannot convey. This principle has also been reinforced by the case law of the European Court of Human Rights (ECtHR), which has repeatedly stressed the importance of direct contact with the evidence for a conviction on appeal.

The Nature of Nullity and Limits of Deductibility

Judgment no. 9128/2025 focuses on the qualification of the nullity arising from the violation of art. 603, paragraph 3-bis, c.p.p. and the limits within which such nullity can be asserted. The Court of Cassation has established that:

In matters of appeal proceedings, the overturning of an acquittal resulting from a different assessment of testimonial evidence taken in the first instance, not renewed in violation of the provisions of art. 603, paragraph 3-bis, of the Code of Criminal Procedure, constitutes a general nullity of intermediate regime, subject to the limits of deductibility referred to in art. 182, paragraph 1, of the Code of Criminal Procedure, which, therefore, cannot be raised by the party who, by their waiver, has contributed to causing it, nor can it be raised ex officio by the court of legitimacy, as it does not fall among the absolute nullities which, pursuant to art. 179, paragraph 1, of the Code of Criminal Procedure, are incurable at any stage and degree of the proceedings.

This maxim is of fundamental importance and deserves careful examination. The Court of Cassation clarifies that the omitted renewal of evidence, while a serious violation, does not result in an absolute nullity (incurable and discoverable ex officio at any stage and degree of the proceedings, pursuant to art. 179 c.p.p.). Instead, it is a "general nullity of intermediate regime." What does this mean? Intermediate nullities are those provided for by art. 178 c.p.p. (such as those relating to the defendant's intervention, assistance, and representation) which, while serious, are subject to specific terms and methods of assertion. In particular, art. 182, paragraph 1, c.p.p. establishes that nullity cannot be raised by the party who caused or contributed to causing it, or by the party who waived it. This principle of procedural "self-responsibility" is crucial: if the defense, for example, despite having the opportunity to request the renewal of evidence, does not do so or even explicitly or implicitly waives it (by not raising the issue promptly), it cannot later assert such nullity. The Court has therefore excluded the ex officio discoverability of such nullity by the court of legitimacy, reiterating that only absolute nullities enjoy this prerogative.

Practical Implications for Defense and Criminal Proceedings

The ruling of the Court of Cassation has significant repercussions on defense strategy and procedural conduct. Here are some key points:

• Diligent Attention: Defense lawyers must pay the utmost attention to the appeal phase, especially when there is a risk of overturning an acquittal.
• Request for Renewal: It is essential to explicitly request the renewal of testimonial evidence if it is believed that their reconsideration is decisive for the judgment and if the Court of Appeal shows an intention to re-evaluate such evidence unfavorably.
• Timeliness: The objection of nullity for omitted renewal must be raised promptly, as soon as the party becomes aware of it or in any case within the deadlines set by the code, under penalty of forfeiture.
• No Ex Officio Discoverability: One cannot rely on ex officio discoverability by the Court of Cassation; intermediate regime nullity requires the initiative of the interested party.

This judgment underscores the importance of active and informed participation of the parties in the proceedings, calling for adherence to procedural rules for the safeguarding of their rights. The omission of evidence renewal, while a defect, is not a weapon that can be used at will, but an issue to be managed with prudence and timeliness.

Conclusions

Judgment no. 9128/2025 of the Court of Cassation provides a clearer framework on the consequences of the failure to renew testimonial evidence on appeal, when an acquittal is to be overturned. It reiterates the principle that, while renewal is a fundamental safeguard of a fair trial, the nullity arising from its omission is not absolute. Its deductibility is tied to the diligence of the party and the time limits imposed by the code of criminal procedure. This decision serves as a warning to all legal professionals, reminding them that the protection of procedural rights requires not only knowledge of the rules but also their correct and timely application within the context of the trial.