The Use of Evidence Acquired After the Expiry of Preliminary Investigations: Analysis of Judgment No. 20166/2025

In the complex landscape of criminal law, procedural deadlines are of crucial importance to ensure the proper conduct of investigations and the protection of fundamental rights. The issue of the admissibility of evidence acquired after the expiry of the preliminary investigation period, particularly for precautionary purposes, has always been a subject of debate and jurisprudential interventions. Judgment No. 20166, filed on May 29, 2025, by the Court of Cassation, presided over by Dr. F. Casa and with Dr. A. Centonze as rapporteur, offers a fundamental clarification on this delicate matter, annulling with referral the decision of the Tribunal of Liberty of Catanzaro.

The Expiry of Preliminary Investigation Deadlines: A Crucial Limit

Preliminary investigations represent the initial phase of criminal proceedings, during which the Public Prosecutor gathers the necessary elements to decide whether to bring criminal charges. Article 405 of the Code of Criminal Procedure establishes the deadlines within which these investigations must be concluded, generally set at six months, extendable up to a maximum of eighteen months or two years for particularly serious crimes. Compliance with these deadlines is not a mere formal requirement but a substantial guarantee for the suspect, aimed at preventing them from remaining indefinitely in a state of legal uncertainty and under the sword of Damocles of accusation.

Article 407, paragraph 3, of the Code of Criminal Procedure provides that investigative acts carried out after the expiry of the deadlines are inadmissible. This inadmissibility, however, is not absolute and has led to different interpretations, especially when it comes to applying precautionary measures. It is precisely on this edge that the intervention of the Supreme Court, called upon to resolve a matter of great practical and theoretical relevance, is inserted.

Judgment 20166/2025: When Late Evidence Matters (or Less)

The Cassation ruling focuses on the application of inadmissibility for precautionary purposes, an aspect of particular impact on the personal liberty of the suspect. The specific case concerned a defendant, R. P., and the use of statements from a justice collaborator formally acquired in a separate proceeding, but relating to a homogeneous criminal context. The Court established clear principles to prevent circumvention of the deadline regulations. Here is the maxim:

Evidence acquired by the public prosecutor after the expiry of the preliminary investigation deadlines may be used for precautionary purposes only if acquired during investigations unrelated to the facts subject to the proceedings whose deadlines have expired, or if originating from other proceedings relating to objectively and subjectively different criminal offenses, it being necessary in any case that such findings are not the result of investigations aimed at verifying and deepening the elements that emerged during the criminal proceedings whose deadlines have expired.

This maxim is of fundamental importance and deserves careful analysis. The Court distinguishes two main scenarios in which late evidence can be used for precautionary measures, but it imposes a crucial limit. In summary, admissibility is permitted if the evidence is:

• Acquired in investigations completely unrelated to the specific facts of the proceeding with expired deadlines.
• Originating from other proceedings, provided that the criminal offenses are objectively and subjectively different from those for which the deadlines have expired.

The decisive point, however, lies in the negative condition: such findings must not be the result of investigations aimed at verifying or deepening elements that have already emerged in the proceeding whose deadlines have expired. In other words, it is not possible to use a "parallel" or "satellite" proceeding to circumvent the peremptory nature of investigative deadlines. The Court, in the case of R. P., noted that, although the statements were formally acquired in a separate proceeding, the criminal context was homogeneous, suggesting a potential circumvention of the prohibition. This principle reinforces the dictates of Article 407 of the Code of Criminal Procedure and previous case law (such as No. 9386 of 2018), preventing inadmissibility from becoming an easily evadable rule.

The Balance Between Investigative Effectiveness and Defense Guarantees

The Cassation decision reflects a constant jurisprudential effort to balance two fundamental needs of the criminal system: the effectiveness of investigative action and the protection of defense guarantees. On the one hand, the State has the duty to prosecute crimes and bring those responsible to justice, including through the adoption of precautionary measures necessary to prevent the repetition of crimes, flight, or the tampering of evidence (Art. 273 of the Code of Criminal Procedure). On the other hand, the suspect enjoys the right to a fair trial and not to be subjected to investigations without time limits, which are also cornerstone principles of European law.

The judgment under review reiterates that compliance with preliminary investigation deadlines is not an obstacle to ascertaining the truth but a pillar of legal civilization. The inadmissibility of late acts serves to hold the Public Prosecutor accountable and to protect the suspect from a procedural "pending sword of Damocles." The exception, although admitted, is strictly limited to prevent abuses and ensure that all evidentiary acquisitions comply with the principles of legality and timeliness.

Conclusions: Reflections on Criminal Justice

Judgment No. 20166/2025 of the Court of Cassation represents a firm point in the complex interpretation of Article 407 of the Code of Criminal Procedure and the use of evidence in precautionary matters. It clarifies that the acquisition of evidentiary elements beyond the preliminary investigation deadlines, while potentially finding use in certain circumstances (objectively and subjectively different proceedings or unrelated investigations), can never become a tool to circumvent the temporal guarantees established for the protection of the suspect. For legal professionals and anyone involved in criminal proceedings, a thorough understanding of these nuances is essential. Our Law Firm is available to offer advice and assistance, ensuring a defense that is attentive and updated to the latest jurisprudential developments, guaranteeing that rights and guarantees are always fully respected.