Permanent Offence and "Tempus Commissi Delicti": The Public Prosecutor's Temporal Delimitation in Ruling 10313/2025

The Supreme Court of Cassation, with Ruling No. 10313, filed on March 14, 2025 (President G. R., rapporteur G. T.), has provided crucial clarification on the management of permanent offences and the Public Prosecutor's faculty to temporally delimit the conduct. This ruling is of great interest to criminal law, addressing a fundamental issue: how to precisely define the time frame of an offence whose commission is prolonged over time, especially when the initial charge is formulated in an "open" manner, without a defined end date.

Delimitation of "Tempus Commissi Delicti" in Permanent Offences

Permanent offences, such as mafia-type criminal association (art. 416 bis c.p.) cited in the case, are characterised by unlawful conduct that continues over time. This peculiarity makes the exact determination of the "tempus commissi delicti", the period of commission of the offence, complex. Often, the Public Prosecutor (such as P.M. G. C. in the case of the defendant A. M.) formulates an "open" charge, leaving the end date undetermined. Ruling 10313/2025 intervenes on this gap, establishing clear principles for prosecutorial action and the protection of the defence.

The Supreme Court's Ruling and the Public Prosecutor's Role

The core of the decision is contained in the following ruling:

It is permissible for the public prosecutor, during the proceedings, to delimit the "tempus commissi delicti" of a permanent offence originally charged in an "open" form, but, if the retrodating is not supported by adequate justifying elements, the offence must be considered charged up to the day of the hearing when the public party expressed the will to withdraw future events from the judge's consideration. (Case concerning the crime of mafia association).

This principle clarifies that the Public Prosecutor has the power to specify the period of commission of the offence even during the trial phase. However, the Court sets a condition: if the Public Prosecutor intends to retroactively set the end of the conduct, this choice must be supported by "adequate justifying elements". In the absence of such reasoning, the offence is presumed to have continued until the moment the prosecution declared in court its intention to exclude subsequent events from the trial. This mechanism ensures transparency and certainty, essential for the defendant's right to defence, in line with articles 50, 516, 519, 520, 521 of the Code of Criminal Procedure.

Implications and Guarantees for a Fair Trial

The Supreme Court's decision, which partially annulled without referral the judgment of the Court of Appeal of Naples, has several practical implications:

• Clarity of the charge: The temporal charge of a permanent offence finds a certain limit, either by the motivated will of the Public Prosecutor or by legal presumption.
• Burden of proof for the Public Prosecutor: The retrodating of unlawful conduct requires a evidentiary basis that the Public Prosecutor is obliged to provide.
• Defence protection: The defendant can organise their defence strategy with a clearer picture of the period of accusation.

Conclusions: Balance between Prosecution and Defence

Ruling No. 10313/2025 represents a significant step forward in balancing the effectiveness of criminal prosecution with indispensable defence guarantees. It recognises the necessary flexibility for the Public Prosecutor but reiterates the fundamental importance of certainty in the charge for the defendant. A fair trial requires the prosecution to be clear and defined, and this ruling helps to strengthen this principle, providing a valuable reference for legal professionals.