The Continuation of the Offence and the Execution Judge: the Clarity of Cassation n. 19390/2025

In the complex landscape of Italian criminal law, the figure of the Execution Judge plays a crucial role, acting as the guarantor of the application of the sentence once it has become irrevocable. A particularly delicate aspect of his activity concerns the recognition of the link of continuation between offences, an institution that, if correctly applied, can lead to a milder sanctionary treatment for the defendant. On this topic, the Court of Cassation, with the recent judgment no. 19390 of May 15, 2025, has provided important clarifications, precisely outlining the boundaries of the execution judge's jurisdiction.

The Continuation of the Offence: a Fundamental Principle in Criminal Law

The concept of a continued offence is governed by Article 81 of the Criminal Code, which establishes that multiple violations of the same or different legal provisions, committed in execution of the same criminal design, must be considered as a single offence for penalty purposes. This 'fictio iuris' aims to avoid a material cumulation of penalties that would be excessively afflicting, recognizing a sort of subjective unity between the different illicit conduct. The application of this institution requires careful evaluation by the judge, who must ascertain the existence of the 'same criminal design', an essential element for its configurability. Continuation can be recognized both during the cognitive phase, during the trial, and subsequently, during the execution phase, when the judgments are already final.

The Execution Judge and the Limits of His Jurisdiction

The Execution Judge, mainly governed by Article 671 of the Code of Criminal Procedure, has the task of resolving issues that arise after the judgment has become final. Among these is precisely the possibility of recognizing continuation 'in executivis', i.e., after the individual convictions have become irrevocable. It is here that the judgment of Cassation no. 19390/2025 intervenes decisively, establishing a principle of fundamental importance:

The recognition of the link of continuation by the execution judge must be based on the evaluation of only those elements ascertained in the irrevocable judgments, so that no relevance can be given to the content and reasoning of any precautionary measures that have subsequently occurred.

This maxim crystallizes a cardinal principle of our legal system: legal certainty and the value of the judgment. The Execution Judge, in fact, cannot and must not introduce new elements of evaluation that have not already been definitively ascertained in the judgments that have become final. Precautionary measures, by their very nature, are provisional measures, instrumental to the main proceedings and destined to lose their effectiveness upon their conclusion or stabilization. They do not have the same evidentiary and stable force as irrevocable judgments. Therefore, their reasoning, however detailed, cannot supplement or modify the evidentiary framework on which the Execution Judge must base his decision regarding continuation. This approach ensures that the evaluation of the 'same criminal design' takes place exclusively on the basis of definitively ascertained facts and circumstances, preventing provisional and not yet consolidated elements from influencing a decision so relevant to the determination of the overall penalty.

Practical Implications of the Ruling

The Supreme Court's decision has several practical implications:

• Legal Certainty: It reinforces the principle that the execution phase is strictly bound by what has been established in irrevocable judgments, avoiding extensive interpretations or the introduction of elements external to the judgment.
• Role of the Execution Judge: It confirms the 'guarantor' nature of the execution judge, whose function is to apply and harmonize penalties based on definitive findings, without re-examining the merits of issues already decided.
• Protection of the Defendant: Although it may seem restrictive, this approach also protects the defendant G. P. (in the specific case), ensuring that his position is evaluated only on the basis of certain elements and not on measures that, being precautionary, may have been adopted with a less complete or provisional evidentiary framework.

Conclusions

The judgment no. 19390/2025 of the Court of Cassation represents an important milestone in Italian criminal law. By reiterating that the recognition of continuation 'in executivis' must be based solely on the elements ascertained in irrevocable judgments, and not on subsequent precautionary measures, the Supreme Court strengthens the principles of legal certainty and the intangibility of the judgment. This ruling offers clarity to legal professionals and ensures a coherent and uniform application of Article 81 of the Criminal Code, contributing to a more predictable and just judicial system.