Partial revocation of the plea bargaining sentence allowed, following the acquittal of the co-defendants in related proceedings, even for counts...

Partial revocation of the plea bargaining judgment following the acquittal of the co-defendants in related proceedings permitted, even for charges in relation to which there was no "express" conflict of verdicts, and also in the presence of an appeal by civil parties.

The Court of Appeal of Brescia, in its recent judgment No. 1763/2024, highlighted the crucial role of the review procedure in ensuring a re-examination - even if only partial - of convictions in the presence of contrasts between judgments.

Attorneys Mauro Carelli and Giuseppina Cimmarusti were appointed for the revision proceedings of a plea bargaining sentence - issued by the Judge of the Preliminary Hearing of the Court of Milan, Dr. Guido Salvini - whereby the Director of some companies was given an agreed sentence of four years' imprisonment in relation to various bankruptcy and financial crimes.

More specifically, in the above-mentioned plea bargaining judgment, the Administrator was also convicted of, among others, the following offences and counts:

1.      A.1.) fraudulent bankruptcy referred to in Articles 216 paragraph 1 no. 1) and 223 paragraph 1 L.F., in relation to distractive conduct of participations sold at a price offset with credits for non-existent transactions (referred to in Chapter C);

2.      C) fraudulent declaration through the use of invoices for non-existent transactions referred to in Article 2 of Legislative Decree 74/2000, for having indicated invoices for non-existent transactions in certain tax returns;

3.      D) issuance of invoices for non-existent transactions referred to in Article 8 of Legislative Decree 74/2000, for having issued the invoices for non-existent transactions referred to in Chapter C), in his capacity as Director of the issuing company.

In relation to the same matter, the Director's co-defendants - who were charged in separate proceedings - were acquitted by the Court of Milan, Criminal Section I, President Dr. Cairati, for heads A.1 and D - with the formula 'because the fact does not exist'. The co-defendants were also charged with heading C) of the indictment.

The lawyers Mauro Carelli and Giuseppina Cimmarusti requested the partial revision of the aforementioned plea bargaining sentence in view of its objective incompatibility with the sentence passed against the co-defendants in relation to A.1 and D.

But not only that.

Although the co-defendants were not charged with heading C) and, therefore, the acquittal decision did not rule on the charge under Article 8 of Legislative Decree No. 74/2000, a request was made to revise the plea bargaining decision also with regard to heading C) of the indictment, in consideration of the fact that the invoices contested under heads C) and D) are the same, and are also the subject of the charge under heading A.1).

The Court of Appeal of Brescia upheld the petition for revision in its entirety, revoking the plea bargaining sentence in relation to the conviction for the charges under chapters A.1), C) and D) with the formula "because the fact does not exist" and, consequently, accepting the plea bargaining request, recalculated the sentence for the remaining charges.

In this last respect, it should be noted that the Court of Appeal, in the course of the revision proceedings, requested the parties - defence counsel and the Attorney General - to reach a new and specific agreement on the penalty to be applied pursuant to Article 444 et seq. of the Code of Criminal Procedure.

A significant fact of the judgment under review is the acquittal of the Administrator also for count C), which was not the subject of charges in the related and separate proceedings against the co-defendants.

Lastly, it should be noted that the Court of Appeal of Brescia, complying with the orientation expressed by the Court of Cassation in Joint Sections in 2006 (see Criminal Court of Cassation, Section One, sentence no. 25083 of 11/06/2006), granted the application for revision despite the civil parties' appeal against the acquittal sentence.

The judgment under comment represents a relevant precedent on the subject of sentence revision. It confirms how the protection of the rights of defendants, even when they have plea-bargained for a sentence, also passes through a rigorous review of sentences, in the light of new evidence or, as in the present case, of conflicting judgments.

They are attached:

1.      sentenza n. 1763/2024, C. App. Brescia, I Pen., ud. 11/11/2024, dep. 28/11/2024;