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Cassazione "judge of the procedural fact": indispensable the precise indication of the acts to be re-examined and of the rules that are considered violated and that would have led to a different solution.

In the pronouncement to the United Sections of 26st February 2019, n. 5640, relating to a question of jurisdiction, the Supreme Corte di Cassazione has stated the following principle of law: "whenever it is a matter of resolving a question of jurisdiction (as in any other case in which the investigation is aimed at ascertaining if the trial judge has made an error in procedendo), the Corte di Cassazione is also the judge of the fact and has the power to examine directly the proceedings of the case; however, since the Corte di Cassazione is unable to research and verify the documents involved in the verification at will, it is necessary for the appellant to indicate the elements identifying and characterizing the "procedural fact" which it requires to be re-examined and, therefore, that the corresponding reason contain all the clarifications and references necessary to understand the alleged procedural violation and to proceed to verify the existence of the alternative solution to that practiced by the judges of merit, according to the appellant’s alternative prospect”

In light of what was established, therefore, the power of the Corte to re-examine the question raised it cannot be activated ex officio but presupposes a activity of part, since the Cassazione, reversing the previous orientation (always to the United Sections), cannot "make an independent assessment of the will of the parties involved" but acts in compliance with the "punctual reconstruction of the judicial request and its petendi cause, as stated in the act initiating the proceedings and verified following the exception raised by the part defendant" .

 



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