Sexual offences: Cartabia’s transitional regime is to be referred to the Constitutional Court
Doubts regarding the exception to the principle of non-retroactivity of less favourable criminal law
Key points
Please bring to the attention of the Consulta the transitional arrangements provided for under the Cartabia reform for offences of sexual violence, linked to assault. The Court of Cassation, in its interlocutory order 22740/2026, considers the doubts regarding the constitutionality of Article 85, paragraphs one and two, of Legislative Decree 150/2022 to be well-founded.
Transitional provision under scrutiny
The transitional provision has come under scrutiny from the courts; according to this provision, for offences committed before 30 December 2022 – the date on which the reform came into force – any change in the procedural regime of the related offence – specifically, private violence (Article 610 of the Criminal Code), which is now prosecutable on private prosecution – does not result in the offence of sexual violence (Article 609-bis of the Criminal Code) ex officio prosecution. This is a safeguard for the victim – designed to prevent the extension of private prosecution to minor offences from overshadowing more serious ones – which, however, risks coming into conflict with the principle of non-retroactivity of criminal law that is less favourable to the offender.
Constitutional principles that have already been examined by the Constitutional Court. In Judgment 123/2025, the Constitutional Court clarified that, where a legislative amendment transforms an offence from one prosecuted ex officio to one prosecuted upon complaint, the new legislation applies retroactively if it is more favourable to the offender. Unless the victim has already expressed their desire for punishment by lodging complaint or by bringing a civil action, which, in the case examined by the referring court, had not occurred in relation to the offence of private violence.
A verdict relating to proceedings in which the defendant was accused of persecutory acts, in connection with damage to property held in public trust. The Constitutional Court had ruled that Article 85, paragraph 2-ter of Legislative Decree 150/2022 was unlawful due to its unreasonable derogation from the principle of retroactivity of the lex mitior.
