The fifth criminal section of the Supreme Court of Cassation, by judgment no. 17168 of 23 March 2023, has ruled that the institute of the exclusion of punishment for tenuousness of the fact, referred to in art. 131 bis p.c., having a substantial nature, is also applicable in proceedings relating to facts committed before the entry into force of L. 150/2022 (so-called Cartabia Reform ).
It follows that the application of art. 131 bis p.c. is also deductible in pending cases at the stage of appeal or legitimacy even if the applicant could not have deduced the application of art. 131 bis in the appeal, that is, in the grounds of appeal for expiry of time limits.
The question, in fact, is deductible and detectable ex art. 609, II c., c.c.p. and, in application of art. 2, IV c., p.c. and 129 c.c.p., even if the appeal is inadmissible.
The High Court also stated that if the judgment under appeal is prior to the entry into force of Cartabia Reform, the application of the institution in question in the judgment of legitimacy must be admitted or excluded without postponement of the trial on the merits. If the Court of Cassation, based on the fact established and assessed in the decision, acknowledges the existence of the conditions of application of the institution in question, must declare both its non-punishability ex art. 129 c.c.p. and, pursuant to art. 620, I paragraph, lett. I), c.c.p., the annulment of the judgment under appeal without indictment.