An order destined to generate significant debate. By means of decision no. 27371 of 21 July 2026, the Sixth Criminal Section of the Court of Cassation suspended proceedings and referred to the Court of Justice of the European Union a preliminary question of considerable practical importance: is a national rule compatible with EU law if it allows the judge to reclassify the offence charged — in the judgment, without first informing the defendant — thereby precluding the defendant's access to an alternative proceeding whose time limits have already expired?
The answer that arrives from Luxembourg could reshape certain fundamental guarantees within Italian criminal proceedings, with concrete consequences for thousands of defendants each year.
The Facts of the Case: A Reclassification, a Lost Opportunity
The proceedings giving rise to the order concern a defendant who, during the appeal proceedings before the Court of Appeal of Milan, had a different legal classification of the facts attributed to her by the judge — one that differed from the classification originally charged. That new classification would, in theory, have rendered accessible the probation order (messa alla prova) — a procedural instrument which, upon successful completion, results in the extinction of the offence and, consequently, in the defendant's acquittal.
The difficulty was that the application for a probation order had been lodged by defence counsel only at the appeal hearing, by which time the preclusion deadline set out in Art. 464-bis, paragraph 2, of the Code of Criminal Procedure had long since expired. The outcome: the defendant was unable to access the alternative proceeding, despite being abstractly eligible to do so by virtue of the new classification.
The Preliminary Reference: What the Court of Cassation Is Asking Luxembourg
The Court of Cassation has put to the CJEU a precise and structured question, centred on two fundamental EU provisions:
- Art. 6(4) of Directive 2012/13/EU on the right to information in criminal proceedings, which requires Member States to ensure that the defendant is informed promptly and in detail of any modification of the charge;
- Art. 48(2) of the Charter of Fundamental Rights of the European Union, which guarantees the right of the defence of any person charged.
In essence, the Court of Cassation asks whether those provisions preclude national legislation that permits a judge to reclassify the offence in a judgment — even where such reclassification was in the abstract foreseeable by the defendant — without granting the defendant the opportunity to be restored to the time limit in order to access an alternative proceeding that became available precisely as a result of that new classification.
Why the Court of Cassation Did Not Resolve the Question Itself
The order is candid in setting out the rationale for referring the matter to the Luxembourg judges. The Court acknowledges that, as a matter of principle —
