The Aggravating Circumstance in Criminal Conspiracy: Is a Duo Enough? Analysis of Judgment 8861/2025

Criminal law is a constantly evolving field, where the interpretation of norms by jurisprudence plays a fundamental role. A recent ruling by the Court of Cassation, Judgment no. 8861 of 23/01/2025 (filed 03/03/2025), has addressed a matter of great practical relevance concerning criminal conspiracy, clarifying a crucial aspect related to the application of the aggravating circumstance provided for by Article 112, first paragraph, no. 2, of the Italian Criminal Code. This decision, which involved G. G. as the defendant and V. M. as the Public Prosecutor, and declared the appeal inadmissible against a judgment by the Court of Appeal of Palermo dated 19/12/2023, offers valuable insights for a better understanding of the dynamics of criminal conspiracy and its consequences.

Criminal Conspiracy and the Aggravating Circumstance for Promoters and Organizers

Article 110 of the Italian Criminal Code states that "When several persons conspire in the same crime, each of them shall be subject to the penalty established for it." This is the basis of criminal conspiracy. However, Article 112 provides for aggravating circumstances, including, in the first paragraph, no. 2, that concerning "promoters or organizers" of the crime. The interpretative issue, often debated, which the Court of Cassation intended to resolve with the judgment in question, concerned the necessity of a minimum number of people for the application of this specific aggravating circumstance.

The question was whether the wording "persons" contained in the norm implied a number of subjects greater than two, thus excluding the aggravating circumstance if there were only two conspirators, one of whom was the promoter or organizer. The Court of Cassation, presided over by L. R. and with A. C. as rapporteur, provided a clear and definitive answer, aligning with an already established trend but one that needed to be reiterated.

The Clarity of the Court of Cassation: A Duo is Enough for the Aggravating Circumstance

The Court of Cassation, with Judgment no. 8861/2025, has established a fundamental principle that simplifies the interpretation of Article 112, first paragraph, no. 2, of the Italian Criminal Code. Here is the maxim, the core of the decision:

In matters of criminal conspiracy, it is sufficient, for the recognition of the common aggravating circumstance referred to in art. 112, first paragraph, no. 2), of the Criminal Code, that the conspirators are two in number, given that the wording "persons", indicated by the norm, also includes the leader, promoter, or organizer of the co-offenders' activity.

This means, in simple terms, that a "third wheel" is not necessary for the aggravating circumstance for the promoter or organizer to apply. If subject A promotes or organizes a crime and subject B participates in it, even if there are only two of them, subject A can be held responsible with the aggravating circumstance in question. The norm, in referring to "persons," simply means that there must be a conspiracy (i.e., more than one subject) and that among these there is a promoter or organizer. The Court of Cassation reiterates that the promoter or organizer themselves is one of the "persons" in the conspiracy, and therefore the presence of another co-offender is sufficient to meet the minimum numerical requirement.

This trend is not isolated but aligns with previous jurisprudence, such as Judgment no. 2181 of 1994 and Judgment no. 2645 of 2012. The underlying logic is clear: the legislator intended to punish with greater severity those who, within a criminal association (even a minimal one), assume a leadership or directing role, recognizing the greater social dangerousness of those who plan and coordinate illicit activity. The aggravating circumstance aims to penalize the position of pre-eminence and the ability to influence the will of others, elements that are independent of the total number of participants beyond the minimum necessary for conspiracy.

Practical Implications and Jurisprudential Trends

The ruling by the Court of Cassation has significant practical implications for criminal lawyers, offering a clear point of reference in defense or prosecution in cases of criminal conspiracy. It is essential to carefully assess the role of each participant to determine whether the elements exist to contest or exclude the aggravating circumstance of Article 112, first paragraph, no. 2, of the Criminal Code. The qualification of "promoter" or "organizer" requires a thorough analysis of the conduct, which must reveal an activity of impulse, ideation, or coordination of the crime. Mere participation is not enough; a directive or propulsive function is necessary.

In summary, for the application of the aggravating circumstance, it is necessary that:

• There is a criminal conspiracy (at least two subjects).
• One of the conspirators has played the role of promoter, leader, or organizer.
• A minimum number of participants greater than two is not required for the applicability of the aggravating circumstance.

This interpretation ensures consistency and predictability in the application of the law, avoiding uncertainties that could compromise the fairness of the proceedings. The decision of the Supreme Court consolidates a principle aimed at strengthening the repression of conduct that denotes greater criminal capacity and an active role in the planning and execution of illicit activities.

Conclusions: A Firm Point in Jurisprudence

Judgment no. 8861 of 2025 by the Court of Cassation represents an important piece in Italian criminal jurisprudence. With it, the Supreme Court has provided a clear and definitive interpretation of Article 112, first paragraph, no. 2, of the Italian Criminal Code, eliminating any doubt about the possibility of applying the aggravating circumstance for promoters and organizers even in the presence of only two conspirators. This ruling reiterates the legislator's intention to punish with greater severity those who assume a leadership role in the commission of a crime. Our Law Firm is available to provide consultation and assistance on these and other complex issues of criminal law, ensuring expertise and constant updating on the latest jurisprudential developments.