According to the judge, the ‘incriminating’ rule has been repealed from 1 January 2024 and the accusation must be reformulated, for the Court of Cassation ‘this is an undue procedural stasis’
The Supreme Court of Cassation annulled without postponement the provision of the Rome preliminary hearing judge, challenged by the capital’s prosecutor Carlo Villani in relation to a request for committal to trial in a case of undue receipt of citizenship income. The judge of the preliminary hearing had canceled the request for trial, returning the documents to the prosecutor. An “abnormal” act for the deputy prosecutor who saw his appeal accepted by the judges of the Third Criminal Section of the Supreme Court.
The public prosecutor contested article 7 paragraph 1 of Legislative Decree 4/2019 which establishes that anyone who, in order to unduly receive citizenship income, “makes or uses false declarations or documents or attesting to untrue things, or omits required information, is punished with imprisonment from two to six years” but according to the judge of the preliminary hearing the contested law “is repealed from 1 January 2024”. And, considering that the crime of false certifications for the undue obtaining of citizenship income can no longer be contested, another type of crime, not indicated but presumably identifiable in the undue receipt of public funds, had to be contested. A decision which, according to the prosecutor, constituted an abnormal measure because it led to “an unjustified stasis of the proceedings”.
The supreme judges, with the sentence filed, considered the appeal of prosecutor Villani to be well founded since ”the declaration of nullity of the request for postponement to trial made by the preliminary hearing judge constitutes an abnormal act”. In particular for the judges of the Third Criminal Section of the Cassation, the preliminary hearing judge ”declared the nullity of the request for committal to trial not because it identified a flaw in the indictment with respect to the descriptive content of the contested conduct or of the incriminating provision referred to, but only because it took note of the deferred abrogation in the ascribed case, a circumstance which, however, would not have allowed any declaration of nullity, given that the dispute had been ritually raised according to a law in force and applicable at that time”. The decision of the preliminary hearing judge, therefore, in invoking a cause of nullity not foreseen by the law ”(i.e. a sort of anticipated nullity due to postponed repeal, to use the effective expression found in the appeal), objectively determined an undue procedural stasis, with the principle developed by the Court of Cassation being applicable to the matter in question according to which it is abnormal, because it determines an undue regression of the proceedings”. With the sentence, the supreme judges ordered the transmission of the documents to the preliminary hearing judge in Rome for ”further processing”.