Absolute Nullity in the Review of Precautionary Measures: Analysis of Judgment No. 18189 of 2025

In criminal law, procedural guarantees are the foundation of individual protection. The right to participate in one's own trial, especially in the presence of restrictive measures of liberty, is inviolable. The Court of Cassation, with Judgment No. 18189 of May 7, 2025 (filed May 14, 2025, Rv. 288034-01), has reiterated a cardinal principle: the failure to notify the hearing for the review of precautionary measures is sanctioned with absolute nullity. A ruling that strengthens protections for the suspect and underscores the importance of strict adherence to procedural forms.

Precautionary Measures and the Right to Defence in Review

Precautionary measures, personal or real, are instruments of exceptional gravity, impacting liberty and assets before a final conviction. The Code of Criminal Procedure provides for "review," a control mechanism that allows the suspect or their defence counsel to challenge the measure. Participation in the hearing is crucial for presenting one's arguments. Proper notification of the date is an essential requirement for exercising this right, protected by the Constitution (Art. 24) and the ECHR (Art. 6).

The Cassation Ruling: Failure to Notify and Absolute Nullity

The case, examined by the Cassation Court (pres. A. P., rapporteur M. D. B.), concerned an appeal by the defendant C. S. The Supreme Court quashed with referral the decision of the Vibo Valentia Tribunal for the Liberty, focusing on the failure to notify the suspect of the date of the review hearing. This defect was deemed so serious as to compromise the validity of the proceedings, violating the suspect's fundamental right to participate and defend themselves. This omission was categorized as absolute nullity.

The failure to notify the date set for the review hearing, violating the suspect's right to participate in the proceedings, is sanctioned with absolute nullity, which is incurable and can be raised at any stage and level of the proceedings, as provided for by Articles 178, paragraph 1, letter c), and 179, paragraph 1, of the Code of Criminal Procedure in cases of failure to summon the defendant.

This maxim is fundamental. "Absolute nullity" indicates a very serious defect that renders the act radically invalid and incurable, meaning it cannot be corrected. Its "raiseability at any stage and level" means that any judge, at any phase, has a duty to declare it, even ex officio. The Cassation Court referred to Articles 178, paragraph 1, letter c), and 179, paragraph 1, of the Code of Criminal Procedure, which list cases of absolute nullity, equating the failure to notify the suspect with a "failure to summon the defendant." This comparison underscores the seriousness of the defect, as summoning is the primary act that guarantees knowledge of the proceedings and the possibility of defence.

Implications and Citizen Protection

The ruling has a significant impact on legal professionals and citizens. For lawyers, it imposes constant vigilance on compliance with procedural forms, especially regarding communications. Any omission can invalidate the precautionary procedure. For citizens, the judgment is a reassurance: the judicial system protects fundamental rights. The main implications are:

• Strengthening Guarantees: It consolidates the suspect's right to participate.
• Annulment of Proceedings: Failure to notify leads to the annulment of the measure and the review.
• Ex Officio Raiseability: Judges can declare the nullity even without a party's objection.
• Prevention of Abuse: Strict application discourages practices that undermine the right to defence.

Conclusions: A Bulwark of Due Process

Judgment No. 18189 of 2025 by the Cassation Court confirms the case law protecting the right to defence. It reiterates that the failure to notify the suspect for the review hearing of precautionary measures is not a formal error, but a defect that undermines the foundations of due process, generating an absolute and incurable nullity. This ruling is a warning to all actors in the judicial system to scrupulously respect the guarantees provided by law, ensuring that every individual can fully exercise their right to a fair and complete defence. An indispensable principle for the credibility and fairness of our criminal justice system.