Commentary on Judgment No. 16351 of 2024: Reform of the Final Judgment and Prohibition of Reformatio in Peius

The recent judgment No. 16351 of February 29, 2024, filed on April 18, 2024, by the Court of Appeal of Milan, has raised important questions regarding the prohibition of "reformatio in peius" in the context of a trial following the acceptance of the request for rescission of the final judgment. This legal principle, fundamental in our procedural system, prevents a party that has appealed from finding itself in a worse position than that already obtained in the first instance.

The Prohibition of Reformatio in Peius: Context and Regulatory References

The prohibition of "reformatio in peius" is governed by Article 597 of the Code of Criminal Procedure, which establishes that, in appeal proceedings, the judge cannot aggravate the position of the defendant. However, the judgment in question clarifies that this prohibition does not apply in the case of rescission of the final judgment. In fact, the Court has highlighted that the nullity of the declaration of absence results in a situation of absolute and irremediable invalidity, which overwhelms the entire previous trial.

  • Art. 629-bis, paragraph 3, Code of Criminal Procedure - Legislation on rescission of the final judgment.
  • Art. 597, paragraph 3, Code of Criminal Procedure - Legislation on the prohibition of reformatio in peius.

Analysis of the Judgment and Practical Implications

The ruling of the judgment clearly establishes that, in the new autonomous trial following the acceptance of the rescission, the discretionary power of the judge is not limited. This statement is crucial as it allows the judge to freely assess and establish a new sanctioning treatment, without the restrictions normally provided in an appeal proceeding. The Court emphasized that the new trial, pursuant to Article 629-bis, should not be considered as a phase of appeal, but as a completely new process.

REFORMATIO IN PEIUS - Applicability in the trial following the rescission of the final judgment - Exclusion - Reasons. The prohibition of "reformatio in peius" does not operate in the trial following the acceptance of the request for rescission of the final judgment, as the deemed nullity, absolute and irremediable, of the declaration of absence overwhelms the entire judgment and the sentence with which it was defined, so that in the new and completely autonomous process there is no limit to the discretionary power of the judge in determining the sanctioning treatment. (In its reasoning, the Court clarified that the new trial ordered pursuant to Article 629-bis, paragraph 3, Code of Criminal Procedure, unlike that of Article 597, paragraph 3, Code of Criminal Procedure, does not constitute a phase of appeal).

Conclusions

In conclusion, judgment No. 16351 of 2024 represents an important clarification on the principle of the prohibition of "reformatio in peius". It not only offers a clear interpretation of the current regulations but also highlights the autonomy of the new process following the rescission of the final judgment. This decision could have a significant impact on the defensive strategy of defendants and on the decisions of judges, contributing to greater justice and fairness in criminal proceedings.

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