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 on 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 of 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, affecting 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 appeal the measure. Participation in the hearing is crucial for presenting one's arguments. Correct notification of the date is an essential requirement for the exercise of 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 and remanded the decision of the Vibo Valentia Tribunal for the Supervision of Personal 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 categorised 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 the case 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, i.e., uncorrectable. Its "revisability at any stage and level" means that any judge, at any phase, has the 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 to 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 adherence to procedural forms, especially for 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: 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 Review: Judges declare nullity even without a party's objection.
• Prevention of Abuses: Strict application discourages practices that infringe upon 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 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.