Provisional Appeal and Formal Requirements: Commentary on Judgment No. 22140 of 2023

Judgment No. 22140 of May 3, 2023, of the Court of Cassation, published on May 23, 2023, offers an important interpretation on the subject of provisional appeal, specifying the non-applicability of the formal requirements provided for by the amended Article 581, paragraphs 1-ter and 1-quater of the Code of Criminal Procedure. This ruling, in particular, concerns the case of the defendant E. K. and emphasizes crucial aspects of current legislation.

The Regulatory Context of Provisional Appeal

Article 581 of the Code of Criminal Procedure, amended by Legislative Decree No. 150 of October 10, 2022, introduced specific formal requirements for the notification of the summons for appeal. However, the Court, with its judgment, has excluded that these fulfillments are applicable to provisional appeal, which has a different regulation compared to ordinary appeal.

• The first paragraph of Article 581 establishes the methods of notification.
• Paragraphs 1-ter and 1-quater introduce specific formal requirements for the merits judgment.
• The judgment clarifies that these requirements do not apply generally to the appeal system.

The Ruling's Headnote

Provisional appeal – Applicability of formal requirements provided, for the notification of the summons for the appeal judgment, by the amended Art. 581, paragraphs 1-ter and 1-quater, Code of Criminal Procedure – Exclusion – Reasons. In matters of appeals, the applicability to provisional appeal of the specific formal requirements provided, for the notification of the summons for the appeal judgment, by Art. 581, paragraphs 1-ter and 1-quater, Code of Criminal Procedure, as amended by Art. 33, paragraph 1, letter d), Legislative Decree of October 10, 2022, No. 150, is excluded, given that the indicated provisions establish fulfillments specifically related to the holding of the procedural phase of the second-instance merits judgment and, therefore, are not abstractly classifiable among the general principles governing the appeal system.

This headnote offers a clear indication of the distinction between the two procedural phases, highlighting that the rules concerning the merits judgment do not automatically extend to provisional appeal. The Court of Cassation, therefore, emphasizes the importance of considering the specificities of different forms of appeal.

Conclusions

Judgment No. 22140 of 2023 represents an important clarification for legal practitioners, particularly for lawyers dealing with criminal appeals. The distinction between provisional appeal and ordinary appeal is fundamental to ensuring the correct interpretation and application of procedural rules. The exclusion of formal requirements for provisional appeal facilitates access to justice, simplifying procedures and allowing for greater efficiency in the procedural system.