Not everyone knows that the Supreme Court itself can be subject to remission. Article 618(1-bis) of the Code of Criminal Procedure allows the President of the Court to refer a question of law to the Grand Chamber where the case law on the question is prevailing or manifestly conflicting. In 2026 the mechanism saw fairly wide use, and it is worth knowing.
How remission works
The mechanism allows the President of the Court of Cassation to separate the question of law from the concrete case and refer it to the Grand Chamber, which rules with a judgment binding on all national courts. The rationale is protective: ensuring a uniform interpretation of criminal law, of which the Court of Cassation is the custodian.
Remission is not automatic: it requires the question to be one of law, that there be conflicting case law, and that the President consider the issue cannot be resolved in the concrete case. It is a discretionary act constrained by the existence of its prerequisites.
Applications in 2026
2026 saw recurring use of the mechanism. Among the notable cases, the Fifth Criminal Section referred a question of law to the Grand Chamber under Article 618(1-bis) c.p.p.; the Second Section, in judgment no. 34754 of 28 September 2026, addressed the profile of the institution; the Grand Chamber, in order no. 19652 of 29 May 2026, addressed the question of negative conflict of jurisdiction, one of the typical cases for remission.
The landscape is in motion and needs monitoring: it is the kind of dynamic that, in the months following a referral, has direct effects on defence strategy.
A different route: the preliminary reference to the CJEU
Alongside referral to the Grand Chamber, 2026 saw the Supreme Court formulate preliminary references to the Court of Justice of the European Union. This happened, for example, in a case concerning different legal qualification and failure to access alternative trials: the question of whether the CJEU is competent to rule on the issue.
The two routes are not mutually exclusive: internal remission and the preliminary reference pursue different but complementary aims, and the choice between them has direct consequences for the timing of the proceedings.
Why it matters in defence
Knowing that Article 618(1-bis) c.p.p. exists changes strategy. A defence lawyer facing manifestly conflicting case law need not necessarily give up advancing their own reading: they may ask that the question be referred to the Grand Chamber, obtaining a decision that binds everyone.
In a defence strategy that looks to the medium term, remission is often preferable to a merits judgment that leaves the conflict unresolved. The cost is time, and must be weighed: the benefit is a certain rule of law.
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