14 Dec reform of an acquittal sentence on appeal

In the event of a conviction being appealed, the sentence of acquittal in first instance is overturned (overturning), all the reasons put forward in support of the first degree acquittal decision must be specifically refuted, “promptly demonstrating the unsustainability on a logical and legal level of the most relevant arguments contained therein”, this is because motivation, overlapping with that of the reformed sentence, must give a full explanation of the choices made e “of the greater consideration given to different or differently evaluated pieces of evidence”». The obligation to renew the hearing is limited to testimonies: (a) in relation to which the “intrinsic reliability” of the declarants is the subject of a specific request for reassessment by the public prosecutor, on which lies the burden of proposing specific reasons in compliance with the provisions contained in the new art. 581 c.p.p., (b) they are “decisive” for the assessment of responsibility. The obligation does not extend, instead, to testimonies whose contents are uncontested, but in relation to which a different evaluation of the confirmatory elements is called for; in relation to such testimonies, the renewal is left to the discretion of the judge who can exercise it in compliance with the rules set out in the first three paragraphs of the art.. 603 c.p.p.». In the referral proceedings following the annulment of the appeal sentence which overturned the first degree acquittal sentence, in fact, it is necessary to renew the preliminary investigation by re-taking the declaratory evidence deemed decisive, even if said renewal has already occurred in the appeal proceedings following a previous annulment with postponement, as it must take place before the same judge-natural person who must make the decision. For the United Sections, the reform of the acquittal sentence is not precluded if the renewal of the declaratory evidence has become impossible due to death, unavailability or illness of the declarant. the United Sections resolved the issue - referred by the fifth section of the Court of Cassation, with ordinance no. 25283 of the 4 June 2021 – with, in case of reform of the first degree acquittal judgment on appeal, based on a different evaluation of the statements considered decisive, the impossibility of proceeding with the trial renewal of the declaratory evidence due to the death of the subject to be examined precludes, alone, the overturning of the acquittal judgment. According to the traditional orientation of jurisprudence (Cass. pen., sez. and., 28 April 2016, n. 27620), even in cases where the renewal of the declaratory evidence on appeal proves impossible - for example due to unavailability, illness or death of the subject to be examined - without prejudice to the applicability of the art. 467 c.p.p. for the urgent taking of evidence “not postponable”, there are no reasons to believe that an overturning of the acquittal judgment ex actis is permitted. The judge's duty remains unchanged to ascertain both the actual existence of the preclusive cause for the new hearing and that the removal from the examination does not depend on the desire to favor the accused or on illicit conduct carried out by third parties, in this case the judge is entitled to base his belief on the previous declarations. Also regarding, in particular, the figure of the vulnerable subject (as for minors, especially if they are victims of crime) there are no valid reasons to consider the preclusion of an ex actis overturning of the acquittal judgment inapplicable. Moreover, in this special situation the judge is left to evaluate the unfailing need to subject the weak subject, albeit with appropriate precautions, to further stress in order to test the validity of the appeal proposed against the acquittal sentence. However, observed the referring Section, the affirmation by the same sentence of the United Sections that the impossibility of proceeding with the renewal of the trial of the declaratory evidence decisive for the death of the subject to be examined precludes the overturning of the acquittal judgment ex actis seems to shift the aforementioned axis onto a different level of a “prohibition” placed on the judge to use the trial statement for the purposes of the decision “not renewed”. The United Sections law principle “Dasgpta” seems to translate into a sort of “evidentiary exclusion rule” which, But, it is not reflected in positive discipline, including that introduced by L. 23 June 2017, n. 103 – which inserted paragraph 3-bis in the body of the art. 603 c.p.p., in view of which in the case of an appeal by the public prosecutor against a sentence of acquittal for reasons relating to the evaluation of the declaratory evidence, the judge orders the renewal of the hearing - which leads the interpreter to place the topic under examination within what is referred to as the “clinic” of jurisprudence, that is, the definition of the judge's cognitive and motivational standards, giving up one “substantial” exclusion rule not foreseen by the law and not imposed by the art. 111 Cost., that, in its fifth paragraph, allows the exception to the adversarial principle for cases of ascertained objective impossibility, cases referable to facts independent of the will of the declarant, which in themselves make the statements made previously unrepeatable, regardless of subjective attitude (Corte cost., 25 October 2000, n. 440), facts within which the subsequent death of the declarant can certainly be traced back (Cass. pen., sez. F, 8 August 2019, n. 43285). The United Sections Court of Cassation has enunciated the following principle of law: the reform, on appeal, of the acquittal sentence is not precluded in the event that the renewal of the declaratory evidence, object of discordant evaluation, has become impossible due to death, unavailability or illness of the declarant. Nonetheless, the motivation for the sentence is based on the evidence already acquired, must be strengthened on the basis of additional elements - suitable to compensate for the sacrifice of the cross-examination - which the judge has the burden of researching and acquiring also making use of the officious powers referred to in art.. 603 c.p.p.