Reading the judgment against itself

A criminal appeal almost always stems from an unfavourable decision: a conviction, a sentence considered excessive, a confiscation. Not infrequently, moreover, the lawyer takes it on without having followed the earlier stages. I have taken over the defence only after the conclusion of the first-instance trial, in cases built on wiretaps, statements by cooperating witnesses (collaboratori di giustizia) and accounting records. Faced with an adverse judgment, one is tempted to challenge all of it; but that is the surest way to persuade no one.

Specific grounds

The Code treats as inadmissible, for lack of specific grounds, an appeal that does not set out, for each request, “in a precise and explicit form” the critical objections to the factual or legal reasons given in the decision under appeal (Art. 581(1-bis) of the Code of Criminal Procedure). Simply restating one’s own version of the facts is therefore not enough: one has to show where the judge’s reasoning fails, and why.

From structure to criticism

Before writing a single line, I reconstruct the decision as if I had to defend it: which facts the court found established, on what evidence and through what steps it reached the conviction. Only then do I look for the points where the structure cracks. Every statement in the appeal refers to a precise page of the judgment or of the case file, so that the court can check it immediately.

Where reasoning can give way

Internal contradictions. A court may exclude an aggravating circumstance because the defendant could not have known a certain fact and, at the same time, hold the defendant liable for an act that presupposes precisely that knowledge. If two passages of the reasoning cannot both be true, the defence does not need to prove anything new: it is enough to bring out the contradiction, a defect that can also be raised in an appeal to the Court of Cassation (Art. 606(1)(e) of the Code of Criminal Procedure).

Unusable evidence. In tax-crime cases it is not unusual for the first statements of the person concerned to be taken during a tax audit, without the warnings required by law and without a lawyer, when evidence pointing to that person’s guilt has already emerged. Yet, if evidence of an offence emerges in the course of an inspection, the acts needed to secure the sources of evidence must be carried out with the safeguards of the Code of Criminal Procedure (Art. 220 of its implementing provisions). The statements of someone who should have been heard as a suspect from the outset cannot be used (Art. 63(2) of the Code of Criminal Procedure), and their unusability can be raised by the court of its own motion at any stage and level of the proceedings (Art. 191 of the Code of Criminal Procedure). Once this material is excluded, the evidential picture may change radically.

Elements of the offence taken for granted. Art. 10 of Legislative Decree 74/2000 punishes anyone who, in order to evade income tax or value added tax, or to enable third parties to evade them, “conceals or destroys, in whole or in part, the accounting records or documents that must be kept”, so as to prevent the reconstruction of income or turnover. Failure to keep accounts is a different matter, punished with an administrative penalty (Art. 9 of Legislative Decree 471/1997). The Court of Cassation accepts that the existence of the documents may be proved by inference: if an invoice is found at the customer’s premises, the issuer must also have had a copy, and its absence may be attributed to concealment or destruction (Cass. pen., Sez. III, no. 29345/2024). That proof, however, must actually be achieved. A court that treats as existing documents that were never found, without stating the evidence from which it infers this, ends up convicting for an act it has not established.

From 1 January 2027, the date from which the consolidated text on administrative and criminal tax penalties applies (Legislative Decree No. 173 of 5 November 2024, Art. 102), the offence will be governed by Art. 81, which reproduces its wording, and the administrative infringement by Art. 34.

If two passages of the reasoning cannot both be true, it is enough for the defence to bring out the contradiction.

Reasonable doubt is not a formula

The standard of decision is laid down in Art. 533 of the Code of Criminal Procedure: the court convicts only if the defendant is found guilty “beyond any reasonable doubt”. On appeal this means identifying an alternative account of the facts, based on the evidence in the case and not on abstract hypotheses, and showing that the first-instance court did not rule it out. Even the silence of a source of evidence can carry weight: the witness who describes everyone present except the defendant, the financial investigation that finds nothing.

Oral argument

When the appeal is argued at a hearing, the judges already know the papers. Oral argument should not repeat what is written but offer a key to reading it: a few points, arranged in the order in which they support one another, each with its precise reference. No method guarantees an outcome, and every case is different; but a brief that can be checked line by line remains the most serious way to ask a court to review a decision.