Appealing a conviction in Italy: appeal and Cassation
Italy has two stages after a first-instance judgment and they are entirely different. Appeal is a full review of facts and law before a new court. The Court of Cassation reviews only points of law and does not re-examine the evidence. Both run on deadlines counted from the filing of the written reasons, and both refuse grounds that are not specific.
The two stages
| Element | Appeal | Cassation |
|---|---|---|
| What is reviewed | Facts and law | Points of law only |
| New evidence | Possible where the conditions are met | Not admissible |
| Outcome | Confirm, vary, acquit, annul | Reject, or annul with or without remittal |
| Who may sign | Any defence lawyer | Only lawyers on the special roll |
| Deadline | Runs from filing of the reasons | Runs from filing of the reasons |
| Outer time limit on the stage | Two years, extendable in complex cases | One year, extendable |
The outer limits are a recent feature: where a stage exceeds them, the prosecution becomes inadmissible. It is a different mechanism from the limitation period, which stops running at the first-instance judgment, and the two are constantly confused, including in English-language material.
Everything starts with the written reasons
An Italian judgment is announced first and reasoned afterwards. The court states a period within which the written reasons will be filed, and the appeal deadline runs from that filing, not from the day of the hearing.
Where the reasons are filed late, the deadline moves accordingly. This has to be verified rather than assumed, and it is the single most common source of missed appeals in cases involving defendants who have left the country.
Specificity is the admissibility test
Grounds of appeal must identify the points of the decision being challenged, the reasons in law and the elements of fact supporting them. A generic complaint that the judgment is wrong is declared inadmissible without examination.
In the Court of Cassation the requirement is stricter still, and inadmissibility there carries a financial consequence: an order to pay a sum to the fines fund, in addition to costs. An appeal that cannot be argued properly is not a free attempt.
What can actually be argued in Cassation
- Absence of reasons, or reasons that are merely apparent or self-contradictory.
- Breach of procedural rules laid down on pain of nullity or unusability.
- Misapplication of the criminal law.
- Failure to consider decisive evidence, within the limits the code allows.
- Errors in the calculation of the sentence or in the application of circumstances.
What cannot be argued is that the trial court weighed the evidence badly. Disagreement with the reconstruction of the facts, however reasonable, is not a ground of law, and the great majority of unsuccessful applications fail on exactly that.
Two protections worth knowing
Where only the defence appeals, the court cannot impose a heavier sentence than the one under appeal. That is why the decision whether to appeal, and whether the prosecution has also appealed, has to be taken together rather than separately.
And where the appeal court intends to reverse an acquittal on the basis of oral evidence, it must in general re-hear that evidence rather than reassess the transcript.
Appealing from outside Italy
Your presence is not required. The appeal is lodged by your lawyer and the hearings are conducted by them; what is required is that documents reach you or your lawyer, which is a question of the address for service.
If you have discovered a conviction only now, the position is different and the remedies run from the day you found out, as set out in the guide on proceedings you did not know about.
Frequently asked questions
How long do I have to appeal in Italy?
The period runs from the filing of the written reasons, not from the hearing. Where the reasons are filed late, the deadline moves accordingly and this must be verified.
Can I introduce new evidence on appeal?
In the appeal stage it is possible where the conditions are met. Before the Court of Cassation it is not: that court reviews points of law only.
Can the sentence get worse?
Not where only the defence has appealed. If the prosecution has also appealed, the position is different, which is why the decision is taken on both together.
Do I need a special lawyer for the Cassation?
Yes. Only lawyers entered on the special roll may sign an application to the Court of Cassation, and an application signed by anyone else is inadmissible.
If a judgment has been given
The first thing to establish is when the reasons will be filed, because everything else counts from there. First contact is free and covered by professional privilege.