Commentary on Judgment No. 49499 of 2023: Admissibility by Complaint and Inadmissibility of the Appeal

The judgment No. 49499 of November 15, 2023, published on December 13, 2023, has sparked an interesting debate among legal practitioners regarding the issue of admissibility by complaint and its impact on the inadmissibility of appeals in the context of legitimacy. In this article, we will analyze the key points of this decision by the Court of Cassation, trying to make the legal implications comprehensible for citizens and lawyers.

The Regulatory Context

The central issue of the judgment concerns the application of Article 2 of Legislative Decree No. 150 of 2022, which modified the admissibility of certain crimes, making them subject to complaint. This regulatory change has raised questions about how such a modification would interface with appeals already pending in the Court of Cassation. According to the Court, the subsequent admissibility by complaint cannot be considered an "abolitio criminis" and does not affect the declaration of inadmissibility of an appeal.

Analysis of the Judgment

Judgment of legitimacy - Inadmissible appeal - Crime now subject to complaint pursuant to Article 2 of Legislative Decree No. 150 of 2022 - Lack of complaint - Non-admissibility - Prevalence over the declaration of inadmissibility - Exclusion - Reasons - Case. In pending judgments in the context of legitimacy, the subsequent admissibility by complaint due to the entry into force of Legislative Decree of October 10, 2022, No. 150, does not operate as an "abolitio criminis" that can prevail over the inadmissibility of the appeal and affect the so-called substantial judgment. (Case concerning attempted theft aggravated by the use of violence against property, in which the Court found the appeal inadmissible that urged consideration of the lack of a complaint in relation to crimes for which this form of admissibility had been introduced, subsequent to the contested judgment and during the filing of the appeal, by Legislative Decree of October 10, 2022, No. 150).

The Court established that, in this case, the appeal was declared inadmissible precisely because the complaint had not been filed, an essential element for the admissibility of the crime. This clarifies that the regulatory modification does not apply retroactively in favor of those who have already filed an appeal in the Court of Cassation, thus maintaining a clear distinction between the new regulation and the judgment of legitimacy.

Conclusions

Judgment No. 49499 represents an important reference point for understanding the new regulation on admissibility by complaint. It clearly establishes that the changes introduced by Legislative Decree No. 150 of 2022 cannot influence judgments already pending, emphasizing the importance of the complaint as an indispensable prerequisite for admissibility. This aspect is crucial for lawyers and their clients, as it highlights the need to act promptly in compliance with the new norms and to file the complaint in a timely manner to avoid the non-admissibility of crimes. Therefore, the decision of the Court of Cassation provides valuable guidance for managing similar legal situations in the future.

Bianucci Law Firm