Precautionary Measures and Unintentional Homicide: The Court of Cassation Excludes Retroactivity of Terms (Judgment No. 27504/2025)

Criminal law and criminal procedure are complex fields, where every interpretative nuance can have a significant impact on individuals' personal liberty. Among the most delicate issues is that of precautionary measures, tools aimed at ensuring the needs of the proceedings but which must always be balanced with the fundamental rights of the defendant. The Supreme Court of Cassation, with the recent judgment no. 27504 of 2025, has ruled on a matter of particular relevance, clarifying the boundaries of the application of retroactivity of pre-trial detention terms in cases of change of indictment from personal injury to unintentional homicide. A decision that deserves attention for its practical implications and for the reaffirmation of fundamental principles of our legal system.

The Specific Case and the Issue of Retroactivity

The core of the ruling originates from a case where an initial pre-trial detention order was issued for the crime of personal injury (Art. 582 of the Italian Criminal Code). Subsequently, following the victim's death, the indictment was aggravated, leading to the issuance of a new precautionary order for the crime of unintentional homicide (Art. 584 of the Italian Criminal Code). The crucial issue submitted to the Court of Cassation concerned the possibility of applying the rule of retroactivity of pre-trial detention terms, provided for by Art. 297, paragraph 3, of the Code of Criminal Procedure. This rule establishes that the terms of pre-trial detention run from the day of capture, arrest, or detention, even if the order for the measure is subsequent, provided there is identity between the criminal offenses. The Court of Freedom of Florence had rejected the request for retroactivity, a position later confirmed by the Supreme Court.

The Ruling of the Court of Cassation and the Absence of "Structural Identity"

The Supreme Court, with judgment no. 27504 of 2025, rejected the appeal filed by the defendant M. P.M. L. N., confirming the decision of the Court of Freedom of Florence. The principle expressed is of fundamental importance for understanding the application of Art. 297, paragraph 3, of the Code of Criminal Procedure. Here is the full ruling:

In matters of personal precautionary measures, the rule of retroactivity of pre-trial detention terms, provided for by art. 297, paragraph 3, of the Code of Criminal Procedure, does not apply in the case of a first order issued for the crime of personal injury and another subsequent order adopted, upon the victim's death, for the crime of unintentional homicide, as in such cases, structural identity between the two criminal offenses must be excluded.

This ruling clarifies that retroactivity is not automatic. It applies only when the different precautionary orders refer to criminal offenses that present "structural identity." What does "structural identity" mean? It is not a mere identity of the historical fact or the material conduct, but a coincidence in the essential constituent elements of the crime, both on the objective and subjective level, which allows the two indictments to be considered as different expressions of the same criminal core. In the specific case, unintentional homicide (Art. 584 of the Italian Criminal Code) is clearly distinct from personal injury (Art. 582 of the Italian Criminal Code). Although both crimes stem from a violent action, unintentional homicide is characterized by the unintended but foreseeable death, as a consequence of acts aimed at committing injury. This evolution of the event and the consequent different legal qualification prevent the two offenses from being considered structurally identical, making the retroactivity of detention terms inapplicable. Previous case law (such as No. 1363 of 2022 or the United Sections No. 34655 of 2005, cited in the references) has often addressed the issue of identity, emphasizing the need for a thorough analysis of the correlation between the charges.

Implications and Regulatory Framework

The decision of the Court of Cassation has significant practical implications. Excluding retroactivity means that the pre-trial detention terms for unintentional homicide will run from the date of the second order, not the first. This can prolong the defendant's pre-trial detention, highlighting the importance of correct legal qualification from the very first stages of the investigation. The legal principle enunciated by the Court, presided over by Dr. G. R. A. M. and reported by Dr. F. A., is based on a rigorous interpretation of Art. 297, paragraph 3, of the Code of Criminal Procedure, balancing precautionary needs with the guarantee of the defendant's rights.

The relevant regulatory framework includes, in addition to Art. 297 of the Code of Criminal Procedure, also:

• Art. 582 of the Italian Criminal Code (Personal Injury)
• Art. 584 of the Italian Criminal Code (Unintentional Homicide)
• Art. 309 of the Code of Criminal Procedure (Review of orders imposing a coercive measure)
• Art. 649 of the Code of Criminal Procedure (Prohibition of a second trial), although the latter is further from the specific issue of retroactivity, it is still part of the broader procedural context.

The ruling emphasizes the importance of a careful assessment of the constituent elements of the crimes, which is not limited to the materiality of the act but extends to the subjective element and the event, in order to determine the applicability of procedural rules that directly affect personal liberty.

Conclusions

Judgment No. 27504 of 2025 by the Court of Cassation represents a firm point in the interpretation of Art. 297, paragraph 3, of the Code of Criminal Procedure. It reiterates that the retroactivity of pre-trial detention terms is not applicable when, in the face of an initial charge of injury, the event of death occurs and leads to the reclassification of the act as unintentional homicide. The key is the absence of "structural identity" between the two criminal offenses, a concept that requires legal professionals to conduct a deep and not superficial analysis of the nature of the crimes. This decision contributes to strengthening legal certainty and guiding the application of precautionary measures, ensuring that pre-trial detention terms are calculated precisely and in accordance with the principles governing criminal matters.