ISSN 3103-7305 • International English Edition
Criminal Sanctions & Sentencing
Diamond Open Access
Vol. 1, Issue 3 (2026) • Art. 6713 • pp. 1–9
Requesting Substitute Criminal Sanctions on Appeal: Referral to the Joint Divisions
Abstract
This article examines the procedural admissibility of requesting substantive alternative sanctions directly on appeal, following the referral order no. 35458/2026 of the Criminal Court of Cassation to the United Sections. The analysis explores the intersection between the devolutive principle, the cooperative structure established by the Cartabia reform, and the scope of procedural preclusions under Italian criminal procedure. By scrutinizing conflicting judicial approaches, the study highlights critical implications for defense strategies and sentencing standards.
Key Legal Takeaways
- Referral to the Joint Divisions: Order no. 35458/2026 of the Italian Supreme Court of Cassation, Criminal Division, refers to the Joint Divisions ( Sezioni Unite ) the split in authority over the admissibility of an application for substitute sanctions submitted for the first time on appeal where the statutory prerequisites already existed at first instance.
- Repeal of the mandatory judicial notice: Legislative Decree no. 31/2024 abolished the mandatory ex officio judicial notice following the reading of the operative part of the judgment, thereby ruling out any procedural nullity for failure to initiate an immediate sentencing dialogue.
- Ordinary defence mandate vs. special power of attorney: Submitting an application for substitution falls within the ordinary powers of defence counsel, whereas formally expressing the defendant's consent requires a special power of attorney ( procura speciale ) whenever the substitute penalty entails rehabilitative prescriptions or behavioural obligations.
- Development through supplemental grounds of appeal: An application for substitute sanctions raised in supplemental grounds of appeal is admissible provided that it is functionally linked to a specific original ground challenging sentencing and the quantum of punishment.
Suggested Scholarly Citation & Original Reference
International / OSCOLA Citation: Redazione di Metodo Giuridico, ‘Requesting Substitute Criminal Sanctions on Appeal: Referral to the Joint Divisions’ (2026) 1(3) Metodo Giuridico (ISSN 3103-7305) Art 6713, 1–9 <https://www.metodogiuridico.it/2026/11/13/pene-sostitutive-richiesta-appello-sezioni-unite-cassazione-35458-2026/en/>
Original Italian Title: Richiesta di pene sostitutive in appello: rinvio alle Sezioni Unite — License: Creative Commons CC BY-NC-ND 4.0.
