Index

The question
The solution adopted by the Cassation
Conclusions

1. The question
The Court of Appeal of Reggio Calabria, deciding following cancellation with postponement ordered by the Court of Cassation, in the reform of a sentence issued by the Court always of the same city appealed by the accused, as already partially reformed by the sentence issued by the Court of Appeal (reggina), upon recognition of generic mitigating circumstances, he redetermined the sentence in that of a year five months and twenty days of imprisonment.
This place, against the aforementioned provision, the defendant's defense of the accused appealed by cassation, with a single reason, deduced violation of procedural rules in relation to articles. 627, comma 3, 597, comma 5, cod. proc. pen. and 163 and 164 cod. pen. For the absence of motivation, regarding the failure to exercise the appeal judge to apply the benefit of the conditional suspension of the sentence, due to the surviving change of the sentence within the edicts provided for the granting of this benefit, and the explicit advanced request, both in the reason for appeal, that in the conclusion in the appeal judgment.

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2. The solution adopted by the Cassation
The appeal was declared inadmissible.
In particular, The Ermellini added to such conclusion on the basis of that consolidated nomophilactic orientation according to which, it being understood that the obligation of the appeal judge to motivate about the failure to exercise the power-duty of application of said benefit in the presence of the conditions that allow its recognition, The defendant cannot be honest, with appeal by cassation, of his failure to concession, If it has not requested it during the judgment of merit (Sez. The, n. 22533 of 25/10/2018).
The failure to exercise the power-duty of the appeal judge to apply the aforementioned benefit of the law of office, not accompanied by any motivation, Consequently, it cannot constitute a reason for the appeal by cassation for violation of the law or lack of motivation, If the actual performance of the same power-duty has not been solicited by one of the parties, At least when conclusions in the appeal judgment, or, In cases where I intervene condemns the first time on appeal, not even with the subordinate conclusions proposed by the accused in the first instance judgment (Sez. 4, n. 29538 of 28/05/2019).
However, declining this hermeneutic landing compared to the case case, The judges of Piazza Cavour noticed how, to their opinion, the applicant, contrary to what has been deduced, had never urged the application of the benefit of the conditional suspension of the penalty, nor in the termination judgment, nor with the act of appeal, nor in the final discussion of the appeal judgment, having in this seat limited to renewing the request for granting generic mitigating circumstances, noting at the same time that, also on the occasion of the original appeal in the Court of Cassation, The defender had limited himself to asking for a more favorable sanctioning treatment.
3. Conclusions
The decision in question argues a certain interest being postulated therein, On the basis of a previous and constant interpretative address developed in the ordinary legitimacy, that the defendant cannot dove himself, with appeal by cassation, of the failure to grant the benefit of the conditional suspension of the penalty, If it has not requested it during the judgment of merit.
Such that descends that the failure to exercise the power-duty of the appeal judge to apply the aforementioned benefit of the law, not accompanied by any motivation, it cannot constitute a reason for the appeal by cassation for violation of the law or lack of motivation, If the actual performance of the same power-duty has not been solicited by one of the parties, At least when conclusions in the appeal judgment, or, In cases where I intervene condemns the first time on appeal, not even with the subordinate conclusions proposed by the accused in the first instance judgment.
It is therefore advisable, At least in the same way as this hermeneutic landing, always ask, where obviously the assumptions of the law, the recognition of this cause of extinction of the crime in the judgment of merit given that, otherwise, You cannot do the non -application of such benefit in legitimacy.
The judgment regarding what is stated in this sentence, therefore, Precisely because it contributes to clarifying this jurisprudential point of view on this legal theme, it can only be positive.
Recommended volume

Criminal procedure compendium

This text faces the criminal trial discipline in a complete and in -depth way, allowing an organic and systematic study of the subject.
The work is updated to the L. n. 7 of 2020 of reform of the discipline of interceptions, Al D.L. n. 28 of 2020 With regard to remote criminal process, penitentiary system and tracing of contacts and infections from Covid-19 and the most recent constitutional and legitimacy jurisprudence.

Giorgio SpangherEmeritus professor of criminal procedure at the University of Rome “La Sapienza”.Marco ZincaniLawyer representing the Court of Cassation, president and founder of Legal Training, school of excellence in preparation for the forensic exam present throughout the national territory. Teacher and trainer in twenty Italian cities, Ph.D., author of over four hundred direct contributions to the preparation of the State Exam. He is the creator of the wikilaw.it website and the Desiderio management software, the most advanced distance learning system for public exams and competitions. He is the author of the Forensic Exam series.

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Marco Zincani, Giorgio Spangher, 2021, Maggioli Editore

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