Minor significance of the offence and civil compensation: appeal excluded, question referred to the Constitutional Court

The legal principle and the referral to the Constitutional Court

By order No. 28647 of 29 July 2026 (hearing of 23 April 2026, President Mogini, Rapporteur Siani), the Joint Criminal Sections of the Court of Cassation, ruling on the question referred to them but without deciding the underlying case, set out the legal principle that a judgment declaring the defendant not punishable under Article 131-bis of the Criminal Code (c.p.) for an offence punishable by alternative penalties retains the nature of a judgment of acquittal even when it orders the defendant to make restitution and pay compensation for damages in favour of the civil party: it is therefore not appealable by the defendant, and the only ordinary remedy available is an appeal to the Court of Cassation (ricorso per cassazione).

In the same order, having found that the literal wording does not allow for a conforming interpretation, the Court held that the question of the constitutional legitimacy of the very provision just applied — Article 593, paragraph 3, of the Code of Criminal Procedure (c.p.p.) — is relevant and not manifestly unfounded, with reference to Articles 3, 24, 111 and 117, first paragraph, of the Constitution (Cost.), the latter in conjunction with Article 6 ECHR, insofar as it does not provide for that appeal; it therefore stayed the proceedings and referred the case file to the Constitutional Court pursuant to Article 23 of Law No. 87 of 11 March 1953.

This is a referral order, not a final decision. The provision remains in force, the appeal has not been decided, and the outcome of the incidental constitutional proceeding cannot be predicted.

Where the question originates

This situation exists as a result of Constitutional Court judgment No. 173 of 2022, which declared Article 538 of the Code of Criminal Procedure (c.p.p.) unconstitutional insofar as it did not provide for the judge, when pronouncing acquittal for the particular minor significance of the offence, also to rule on the civil party’s claim. Since then, a judgment of acquittal may contain an order for compensation.

Article 593, paragraph 3, c.p.p., as replaced by Article 34, paragraph 1, letter a), of Legislative Decree No. 150 of 10 October 2022, makes judgments of acquittal relating to offences punishable by a pecuniary penalty or by alternative penalties non-appealable. This gives rise to the asymmetry noted by the Court: the civil party, under Article 576 c.p.p., obtains a merits review of the civil rulings, whereas the defendant who has been acquitted but has lost on the civil action remains confined to review before the Court of Cassation. Article 593, paragraph 3, must moreover be read in conjunction with Article 574 c.p.p., which closes the system of remedies available to the defendant for civil-law purposes.

Why it matters for businesses and for the defence

The issue is concrete in three recurring situations: acquittal for minor significance of the offence accompanied by a general order for compensation; the award of a provisional payment (provvisionale) — a discretionary and equitable ruling that, as a rule, cannot be reviewed by the Court of Cassation; and offences punishable by alternative penalties. The case decided concerned aggravated defamation through the press, charged against the editor-in-chief for failure to exercise oversight (omesso controllo) under Article 57 of the Criminal Code (c.p.), an offence punishable by imprisonment or a fine and therefore by alternative penalties.

One detail allows readers to check whether their own case falls within the bar: for judgments of acquittal, Article 593, paragraph 3, looks to the abstract statutory penalty, not to the penalty that would actually have been applied. For convictions, by contrast, it is the penalty actually applied that matters.

In practice

• Remedy currently available: appeal to the Court of Cassation. An act filed as an appeal is subject to reclassification by the court under Article 568, paragraph 5, c.p.p.; relying on such conversion is not a prudent choice until the Constitutional Court has ruled.
• Attention to the signature requirement. An act classified as an appeal to the Court of Cassation requires, under Article 613 c.p.p., the signature of defence counsel enrolled in the special register: a party who files an appeal relying solely on reclassification runs the risk of an inadmissible challenge.
• Time limits: those set out in Article 585 c.p.p., whose length depends on the time allowed for filing the statement of reasons. They must be checked on a case-by-case basis and admit no extension.
• Concurrence of challenges: if the civil party files an appeal, Article 580 c.p.p. applies; conversion does not change the nature of the defendant’s act in the rescinding phase.
• To be put on record: already at first instance and in the notice of appeal, the merits-based objections regarding the finding of fact, guilt, and the an and quantum of the provisional payment.
• To be monitored: the Constitutional Court’s ruling and the status of similar pending proceedings.

None of the indications given here replaces the assessment of the individual case.

Nota di sintesi a cura dello Studio Legale Petrali, elaborata su fonti normative ufficiali (Gazzetta Ufficiale, Normattiva, Corte di cassazione). Il testo non riproduce contributi di terzi e non costituisce consulenza legale.