Robbery and Minor Offence: The Court of Cassation (Judgment no. 9599/2025) Opens New Prospects for Convicted Individuals

The Italian legal landscape is constantly evolving, and some judicial decisions have the power to rewrite the rules, offering new opportunities and hopes. This is the case with the recent judgment of the Criminal Court of Cassation, no. 9599 of February 13, 2025 (filed on March 10, 2025), which addresses a matter of great practical relevance for those convicted of the crime of robbery. This ruling follows the path laid out by the Constitutional Court with its landmark judgment no. 86 of 2024, completing a process aimed at ensuring greater fairness in the sanctioning treatment.

The Context: Article 628 of the Civil Code and the Constitutional Court's Intervention

To fully understand the scope of the Cassation Court's decision, it is essential to recall the previous regulatory framework. The crime of robbery, provided for by Article 628 of the Italian Penal Code, did not allow, before the Constitutional Court's intervention, for the application of the mitigating circumstance of "minor offence." This regulatory gap created a disparity compared to other property crimes, such as theft (Art. 625 of the Civil Code), for which this mitigating circumstance is contemplated. The absence of this provision meant that even robberies characterized by minimal social disvalue and offensiveness were treated with the same severity as much more serious conduct, without any possibility of mitigating the penalty based on the actual harmfulness of the act.

It was precisely this disparity that the Constitutional Court addressed with judgment no. 86 of 2024. With this ruling, the Court declared the unconstitutionality of Article 628 of the Civil Code insofar as it did not provide for the possibility of reducing the penalty in cases of minor offence. This intervention represented a crucial step towards a criminal justice system more attentive to the principle of proportionality of punishment, recognizing that not all robberies are the same and that the judge must have the tools to modulate the sanction based on the actual gravity of the conduct.

The Cassation Court's Judgment no. 9599/2025: Retroactive Application of the Mitigating Circumstance

The Cassation Court's judgment no. 9599 of 2025, in the case involving the defendant V. G., deals with giving concrete application to the principles established by the Constitutional Court. The central issue was whether a person convicted of robbery, with a final judgment rendered before the Constitutional Court's judgment no. 86 of 2024, could request the application of the new mitigating circumstance. The Cassation Court answered affirmatively, annulling with referral the decision of the Preliminary Investigations Judge of the Court of Macerata of November 15, 2024.

This means that the Constitutional Court's ruling has retroactive effects, a principle founded on Article 30 of Law no. 87/1953, which governs the effects of the Constitutional Court's judgments. This provision establishes that provisions declared unconstitutional cease to be effective from the day following the publication of the judgment. However, in criminal matters, the principle of favor rei applies, according to which norms more favorable to the offender also apply to acts committed previously, provided that the conviction has not become irrevocable.

The Cassation Court, in line with this principle and recalling previous case law (such as United Sections no. 42858 of 2014 and no. 18821 of 2014), clarified that the competent judge for this review is the Execution Judge. It is to him that the convicted person can turn to request the recognition of the mitigating circumstance of minor offence and the consequent redetermination of the sanctioning treatment.

A person convicted of robbery, with a final judgment rendered before the Constitutional Court declared Article 628 of the Penal Code unconstitutional with judgment no. 86 of 2024, insofar as it does not provide for the possibility of reducing the penalty in cases of minor offence, may request the execution judge to recognize the mitigating circumstance and redetermine the sanctioning treatment, unless the matter is considered a "closed case."

This maxim crystallizes the principle: even those who already have a final conviction can benefit from the regulatory change. The Execution Judge, acting under Articles 666 and 670 of the Code of Criminal Procedure, will have to assess whether the robbery for which the conviction was handed down actually presented the characteristics of a minor offence. An example could be a snatch-and-grab theft of minor value, reclassified as indirect robbery, or a robbery committed with non-particularly violent methods and with negligible economic damage. The only exception is the "closed case," meaning when the penalty has been fully served or other events have occurred that make the redetermination superfluous or impracticable.

Who Can Benefit from This Important Opening?

All individuals convicted of robbery with an irrevocable judgment can benefit from this interpretation, provided that the conviction occurred before the publication of the Constitutional Court's judgment no. 86 of 2024 and that the "closed case" has not occurred. The Execution Judge will therefore have to examine the merits of the issue, assessing whether, in the specific case, the conditions for applying the mitigating circumstance of minor offence exist. This implies a case-by-case evaluation, based on the specific modalities of the conduct, the extent of the damage, and the social dangerousness of the offender.

The criteria for assessing the minor nature of the offence, although not expressly detailed in Article 628 of the Penal Code, can be inferred from general principles and established case law regarding other crimes. These include:

• The negligible value of the property stolen.
• The non-particularly violent or intimidating methods of the conduct.
• The absence of serious injuries or particular social alarm.
• The voluntary return of the stolen goods or compensation for damages.

Conclusions: A Step Forward for Criminal Justice

The Cassation Court's judgment no. 9599 of 2025 represents a fundamental piece in the process of adapting our criminal justice system to the constitutional principles of proportionality and equality. By recognizing the retroactive effects of the Constitutional Court's judgment no. 86 of 2024, the Supreme Court offers a concrete opportunity for review of the sanctioning treatment for numerous convicted individuals. It is a virtuous example of how case law can intervene to correct regulatory disharmonies, ensuring greater substantive justice. For those who believe they fall within this category, it is essential to consult with experienced legal professionals to assess the feasibility of a request to the Execution Judge and to undertake the most appropriate path.