Failure to Contest Aggravating Circumstances: Analysis of the Criminal Court of Cassation no. 15455/2024-2025

With decision no. 15455 of 26 November 2024 (filed 18 April 2025), the Fourth Criminal Section of the Court of Cassation, presided over by S. D. – rapporteur D. C., has revisited the issue of the failure to contest an aggravating circumstance, a crucial matter for the balance between the judge's powers and the defendant's guarantees. The case concerned the defendant L. S. A., convicted by the Court of Appeal of Bologna on 19 January 2024, with an appeal subsequently rejected by the Supreme Court.

The Principle Established by the Court

The judges of legitimacy have established that, if an aggravating circumstance is not expressly contested, the trial judge:

• cannot return the case files to the public prosecutor pursuant to art. 521 of the Code of Criminal Procedure;
• cannot rule on the matter, even if the circumstance emerged from the case files;
• must limit themselves to assessing the base fact as formally contested, ignoring the aggravating circumstance (tamquam non esset).

This implies the impossibility of imposing a more severe penalty or declaring different periods of limitation compared to the simple offence.

In matters of circumstances, the judge, in the absence of a contestation of an aggravating circumstance, cannot return the case files to the public prosecutor, as the statutory provisions relating to a different fact are inapplicable, nor can they deem a non-contested circumstance to exist based on the case files, as this is precluded by the provisions of art. 521, paragraph 1, of the Code of Criminal Procedure. Therefore, the judge must limit themselves to pronouncing a conviction for the non-circumstanced criminal offence, as formally contested, with any non-contested aggravating circumstance, and thus not subject to adversarial proceedings between the parties, being considered "tamquam non esset".

Comment: The maxim reiterates that the contestation remains the inviolable perimeter of the prosecution's case. The judge is not at liberty to redefine the indictment, nor can they fill investigative gaps with their own assessments. This protects the right to defence and adversarial proceedings, cornerstone principles of art. 111 of the Constitution and art. 6 of the ECHR.

Practical Implications for Prosecution and Defence

From an operational standpoint, the public prosecutor must pay particular attention to indicating every aggravating circumstance from the notice of conclusion of investigations onwards, being able to supplement it only within the limits of art. 516 of the Code of Criminal Procedure before the closing of the trial. The defence lawyer, on the other hand, may raise an objection regarding the violation of the principle of correlation if the aggravating circumstance were to emerge ex post, obtaining the exclusion of its effects or the reclassification of the fact.

In the enforcement phase, any penalty imposed taking into account a non-contested aggravating circumstance may be redetermined, given the legal non-existence of such a circumstance.

Comparison with Previous Case Law

The ruling aligns with the decision of the United Sections no. 49935/2023, which had already affirmed the inviolability of the principle of correlation, and with subsequent decisions no. 43083/2024 and 4767/2025. The common thread is the prohibition for the judge to "supply" the omissions of the prosecution, avoiding overlaps in roles between the prosecuting and judging magistracy.

At the European level, the ECtHR (see Drassich v. Italy, 2007) has repeatedly censured Italy for violating the fair trial when a defendant is convicted for facts not described in the original indictment. The Court of Cassation, with this judgment, therefore appears to be in line with supranational standards.

Conclusions

Judgment no. 15455/2024-2025 reinforces the principle of procedural legality: if an aggravating circumstance is not contested, it simply does not exist in the proceedings. This serves as a warning to both the public prosecutor, whose duty is precision, and the judge, who must resist the temptation to "complete" the prosecution's case. For criminal defence lawyers, this is a valuable defensive tool, to be invoked to ensure a fair trial that respects the defendant's prerogatives.