22 Apr process review

Review is the main extraordinary means of appeal, governed by articles. 629 e ss. c.p.p. , with which it can be engraved, essentially and absolutely, on the irrevocability of the criminal judgement. The object of the request for revision is the conviction sentence, the sentence issued pursuant to art. 444 co. 2 c.p.p. and the criminal conviction decree, have become irrevocable, even if the sentence has already been carried out or has been extinguished. The possibility of submitting the settlement sentence to review was the subject of a considerable jurisprudential conflict initially resolved by the Unire Sections, which affirmed the inadmissibility of this instrument, as the sentence was not based on a complete assessment of the criminal responsibility of the defendant, just as it happens with a sentence of condemnation. Such a contrast, But, it has now been overcome thanks to the intervention of the legislator with the l. 134 of the 2003, which went to modify the co. 1 dell’art. 629 c.p.p. expressly indicating the plea agreement among those for which review may be requested. The subjects entitled to request a review are:, ex art. 632 c.p.p.:

• the condemned;
• a next of kin ex art. 307 comma 4 c.p. of the condemned;
• the guardian of the condemned;
• the heir or next of kin of the deceased convict;
• the Attorney General of the Court of Appeal in whose district the substantive sentence was pronounced and then became final.

In case of death of the convicted person after the request for review has already been submitted, the judgment is continued by a curator appointed by the President of the Court of Appeal. The request for review is proposed personally or through a special prosecutor ex art. 122 c.p.p. The request must specifically indicate the reasons and evidence justifying it, and be presented together with any deeds and documents. The judge competent to decide is the Court of Appeal identified on the basis of art. 11 c.p.p. compared to that corresponding to the district including the judge who issued the substantive sentence which then became final; therefore, the review does not devolve the case to a judge of higher jurisdiction. It is a means of appeal with effect, as a rule, not suspensive. The revision may be requested in the cases expressly indicated in the art. 630 c.p.p., in these hypotheses it is called a "classical" revision, more recently, instead, following a declaration of constitutional illegitimacy, the so-called revision was introduced. european.
The cases expressly provided for by the law are those indicated in the letters of the art. 630 and they are the following:
a) if the facts established on the basis of the sentence or criminal decree of conviction cannot be reconciled with those established in another irrevocable criminal sentence of the ordinary judge or a special judge: he c.d.. conflict of judgments. They cannot be included in the notion of another irrevocable criminal sentence, the ruling of no place to proceed ex art. 425 c.p.p., the archiving provision (Cfr. Cass. Pen., sez. III, judgment no. 39191/2014), or the plea bargaining sentence (Cfr. Cass. Pen., sez. V, judgment no. 34443/2015). Excluding, then, criminal conviction decrees, given that, such as plea bargaining sentences, they do not presuppose a full ascertainment of the fact. Furthermore, the different interpretation of the criminal law in another ruling due to jurisprudential revirement is not a prerequisite for revision (Cfr. Cass. Pen., sez. V, judgment no. 19586/2010). The irreconcilability in question must not be understood as a logical contradiction between the evaluations of the decisions being compared, but rather as an objective incompatibility between the facts underlying the aforementioned rulings (Cfr. Cass. Pen., sez. V, judgment no. 8419/2016).
b) if the sentence or criminal decree of conviction has deemed the existence of the crime against the convicted person as a result of a sentence of the civil or administrative judge, subsequently revoked, who has decided one of the preliminary questions provided for by the art. 3 c.p.p., or one of the matters provided for by the art. 479 c.p.p. . This happens when the civil or administrative judge has intervened to resolve a question concerning the family status, of citizenship or, However, a particularly complex civil or administrative issue, whose solution the criminal judge has conformed to. Review is possible in the event of a conviction having as its presupposition the status of bankrupt which then ceased with a judicial ruling (Cfr. Cass. Pen., SS. UU., judgment no. 19601/2008).
c) if after the conviction new evidence has arisen or is discovered that, alone or combined with those already evaluated, demonstrate that the convicted person must be acquitted in accordance with the art. 631 c.p.p. . The "novelty" nature of the test does not find it difficult to apply for those that occurred after the conviction, as well as for those pre-existing but discovered later. For pre-existing trials, doctrine and jurisprudence state that they can support the request for revision when they have not been acquired at the trial for various reasons, even through negligence, willful misconduct or gross negligence. What is inadmissible is the exclusive different re-evaluation of the evidence assumed in the previous judgment (art. 637 co. 3 c.p.p.), while revaluation together with the new ones is permitted. By new evidence we must mean not only supervening evidence or evidence discovered subsequently, but also those not acquired in the previous judgment or acquired, but don't evaluate, provided they are not declared inadmissible or deemed superfluous by the judge, and this regardless of whether the lack of knowledge is attributable to the negligent or malicious procedural behavior of the convicted person (Cfr. Cass. Pen., SS. UU., judgment no. 624/2002). This hypothesis is also applicable for the revision of the sentence issued in the abbreviated proceedings (Cfr. Cass. Pen., sez. II, judgment no. 18765/2018).
d) if it is proven that the sentence was pronounced as a result of false documents or in court proceedings, or another fact established by law as a crime. A final judgment is required which certifies the crime in contrast with the sentence; the reviewing judge can incidentally ascertain this condition only in the case in which, on the main street, this was not possible due to an extinct cause (Cfr. Cass., Sez. V, judgment no. 40169/2009).
The Constitutional Court, with sentence no. 113/2011, he has declared “the constitutional illegitimacy of the art. 630 of the Code of Criminal Procedure, in the part in which it does not provide for a different case of review of the sentence or criminal decree of conviction in order to achieve the reopening of the trial, when this is necessary, pursuant to Article. 46, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms, to comply with a final ruling of the European Court of Human Rights”. Introducing, thereby, the c.d.. European review. The elements on the basis of which the review is proposed must be such as to demonstrate that the convicted person should be acquitted pursuant to articles. 529, 530 e 531 c.p.p., that is to say that a sentence must be issued not to proceed due to lack of a condition of admissibility or extinction of the crime or acquittal, even when it is insufficient, the evidence is contradictory or doubtful (Cfr. Cass. Pen., sez. V, judgment no. 14255/2013). In the event of a plea bargain, the reference parameter must only be the acquittal pursuant to art. 129 c.p.p. (Cfr. Cass. Pen., sez. V, judgment no. 34443/2015).
The request for revision must contain a specific indication of the reasons and evidence that justify it and must be presented, together with any deeds and documents, in the Registry of the Court of Appeal identified pursuant to art. 11 c.p.p. In the cases referred to in lett. a), b) e d) the revision must necessarily be accompanied by authentic copies of the sentences or penal decrees. The assessment of the admissibility of the application, in addition to the profile of compliance with legal requirements, concerns the judgment on whether the elements put forward are not manifestly unfounded, incident the novelty characters, congruence and reliability of the elements of to whom (Cfr. Cass. Pen., sez. I, judgment no. 6186/1996). In point there is no obligation to request a prior opinion from the Attorney General by the Court of Appeal, but if this is acquired irregularly, under penalty of nullity, the response must be communicated to the private applicant; this in order to establish a correct cross-examination (Cfr. Cass. Pen., SS. UU., judgment no. 15189/2012). Nothing excludes the adoption of the declaratory in question, for the same reasons, with the final sentence of the review judgment, once this has been arranged (Cfr. Cass. Pen., SS. UU., judgment no. 624/2002). The inadmissibility order is notified to the convicted person and the applicant, who can appeal to the Supreme Court. If the appeal is accepted, the Court of Cassation refers the review judgment to another Court of Appeal identified according to the criteria set out in the art. 11 c.p.p.
The requested Court of Appeal may decide at any time, by order, the suspension of the execution of the sentence or security measure, possibly applying a personal precautionary coercive measure other than imprisonment. In case of non-compliance with the measure, the Court of Appeal revokes the same, and reinstates the execution of the sentence. The aforementioned measures can be appealed to the Court of Cassation. In case of judicial rejection of the request for review, any suspension of execution ceases. The actual judgment, established following the summons decree of the President of the competent Court of Appeal, is governed by the rules relating to preliminary documents and first instance hearings, referred to as applicable; the prerequisite for its establishment is that the application is not deemed inadmissible. The nature of the means of appeal of which does not allow the Court of Appeal to exceed the limits of investigation and taking of evidence linked to the reasons for the request. The sentence is decided according to the provisions of the articles. 525, 526, 527, 528 c.p.p. In case of acceptance, we have the revocation of the provision under review, with the pronouncement of a sentence of acquittal, or, just in case ex C. Cost. judgment no. 113 of the 2011, alternatively of acquittal, confirmatory, o (solo) more favorable. The revision sentence can be appealed to the Court of Cassation. The inadmissibility order, or the ruling rejecting the request for review, do not affect the right to submit further requests, as long as they are innovative, but they entail the condemnation to pay pecuniary sanctions lato sensu. The Court of Appeal, in case of acquittal, orders the restitution of the sums paid and the confiscated assets ex art. 639 c.p.p. The procedure for redressing the judicial error is different and follows the regulations set out in the articles. 643 e ss. c.p.p.