Judgment No. 16676 of 2023: Analysis of the Prohibition of Reformatio in Peius and General Mitigating Circumstances

Judgment No. 16676 of March 30, 2023, represents an important intervention by the Court of Cassation on the subject of general mitigating circumstances and the power of the referring judge. This ruling, in fact, clarifies the limitations that exist in the re-evaluation of the sentence in cases of partial annulment of a conviction.

Context of the Judgment

The case concerns the defendant C. M., who had been sentenced by the Court of Appeal of Rome. However, the Supreme Court partially annulled the judgment, noting the failure to assess general mitigating circumstances. This annulment led to the need to carefully examine the power of the referring judge in recalculating the sentence.

Limitations on the Power of the Referring Judge

According to the Court, the power of the referring judge to re-evaluate the sentence is subject to two important limitations:

• Prohibition of Reformatio in Peius: This general principle in the regulation of appeals prevents the sentence from being increased beyond the measure already imposed, following an appeal by the defendant alone.
• Partial Final Judgment (Giudicato Parziale): The base sentence, already established, cannot be modified due to the partial final judgment formed, pursuant to Articles 624, paragraph 1, and 627, paragraph 2, of the Code of Criminal Procedure.

Annulment for the grantability of general mitigating circumstances - Redetermination of the sentence - Power of the referring judge - Limitations - Prohibition of "reformatio in peius" - Partial final judgment - Configurability. In case of partial annulment of a conviction, ordered for failure to assess the ground regarding the grantability of general mitigating circumstances, the power of the referring judge to re-evaluate the sentence is subject to a twofold limitation: the first, resulting from the prohibition of "reformatio in peius," which constitutes a general principle in the regulation of appeals, also applicable to the rescissory judgment and which, in the case of an appeal by the defendant alone, does not allow exceeding the overall measure of the sentence already imposed, and the second, arising from the partial final judgment formed, pursuant to Articles 624, paragraph 1, and 627, paragraph 2, of the Code of Criminal Procedure, on the measure of the base sentence, which cannot be altered.

Conclusion

Judgment No. 16676 of 2023 is part of a broader legal debate concerning the assessment of general mitigating circumstances and the power to review sentences. It not only reaffirms the principle of the prohibition of reformatio in peius but also highlights the importance of the correct application of procedural rules, thereby ensuring the protection of the defendant's rights. This intervention by the Court of Cassation represents a significant step towards greater legal certainty and the protection of fundamental rights in criminal proceedings.