Justice

Theft, no shortcuts on prosecution

The United Criminal Sections denied the possibility of circumventing the complaint and the prosecutor the possibility of contesting the aggravating circumstance at trial

by Giovanni Negri

31 March 2026

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2' min read

Translated by AI

Versione italiana

Key points

The question
The Contrast
Prosecution
The Council
The other orientation
The Third Way

2' min read

Translated by AI

Versione italiana

No shortcut on the theft procedural regime. The United Criminal Sections, in provisional information released after last Thursday's hearing, denied the possibility for the public prosecutor to change the indictment at the hearing, contesting an aggravating circumstance and thus changing the procedural regime, circumventing the need for the lawsuit.

The question

Technically, the Joint Sections had been asked a legal question on the possibility, once the time limit for filing a complaint for the offence of theft had elapsed, now required by the Cartabia reform of the Code of Criminal Procedure, of a supplementary complaint at the hearing aggravating the defendant's conduct and allowing the prosecution to proceed ex officio.

The United Sections have closed this possibility, clarifying that 'on the subject of theft, where the time limit provided for in Article 85(1) of Legislative Decree No. 150 of 10 October 2022 has elapsed without a complaint having been lodged, the judge shall immediately find that no complaint has been lodged pursuant to Article 129 of the Code of Criminal Procedure'.

The contrast

The Unified Sections had been called into question on the grounds that it would be contrary to Articles 3 and 112 of the Constitution if the public prosecutor were denied the power to propose an act capable of avoiding the new condition of admissibility required by the reform with retroactive effects, even in cases where the public prosecutor did not have the opportunity to take the initiative to adapt the trial to the new rules.

Prosecution

In fact, in the case of supervening inadmissibility, the relationship with the power of supplementary contestation again becomes the outcome of an appreciation of the principle of mandatory prosecution. Moreover, it was argued, the exercise of the power of supplementary contestation of the aggravating circumstance does not provide for any forfeiture or limitation, even when the aggravating element is present before the prosecution is brought.

The Consultation

In order to corroborate the possibility of a supplementary objection, a pronouncement, 139 of 2015 of the Constitutional Court, which recalled how the subsequent aggravating circumstance determines a significant change of the procedural framework because it can result in both a tightening of the penalty and a change of the procedural regime, was also underlined. Passage, the latter, which seemed to legitimise the possibility of the prosecutor's intervention.

The other orientation

Another orientation, however, held that the possibility of amending the indictment was contrary to precedents of the same United Sections. That is to say, once the deadline for the presentation of the complaint has elapsed, the judge is in any case required to pronounce a sentence of inadmissibility, 'any procedural activity carried out after the expiry of that deadline, including the amendment of the indictment pursuant to Article 517 of the Code of Criminal Procedure by contesting an aggravating circumstance that renders the offence ex officio prosecutable, remaining devoid of effect'.

The Third Way

In the background there is also a third interpretative direction that admits the possibility of additional contestation of the aggravating circumstance, but limits it chronologically to thefirst trial hearing and not beyond.