Commentary on Judgment No. 50320 of 2023: Precautionary Appeals and Judicial Reasoning
The recent judgment No. 50320 of November 10, 2023, offers significant insights into real precautionary appeals in criminal proceedings. The Court, presided over by A. C., has established important principles regarding the necessity of adequate reasoning by the preliminary investigations judge, particularly concerning "periculum in mora." This concept refers to the imminent risk of harm that may arise from a specific action or situation, justifying the adoption of precautionary measures.
The Case Under Review
The preliminary investigations judge had rejected a request for the release of seized items, but the order was subsequently appealed. However, the Court upheld the admissibility of the precautionary appeal's inadmissibility declaration by the review court. The central issue was whether a defect in reasoning, i.e., the lack of sufficient justification for "periculum in mora," could be raised for the first time on appeal.
Order rejecting the request for release of seized items by the preliminary investigations judge, lacking reasoning on "periculum in mora" - Failure to raise the reasoning defect before the preliminary investigations judge – Raising the issue on precautionary appeal – Declaration of inadmissibility by the precautionary court – Lawfulness – Reasons. In matters of real precautionary appeals, the declaration of inadmissibility of a precautionary appeal against the order of the preliminary investigations judge rejecting a request for the release of seized items, based on the lack of reasoning on "periculum in mora," is lawful when the relevant objection was not previously raised before the initial judge. This is because a lack of reasoning renders the original order voidable, and if not timely raised with the request for release, it cannot be asserted for the first time on a real appeal.
The Role of Reasoning
The judgment emphasizes the importance of reasoning in the orders of the preliminary investigations judge. According to the Italian Code of Criminal Procedure, it is essential that decisions are reasoned, especially when dealing with precautionary measures that profoundly affect the rights of the individuals involved. The Constitutional Court has already affirmed that the absence of reasoning can lead to the relative nullity of the order.
- The judge must adequately reason the "periculum in mora."
- A lack of reasoning cannot be raised on appeal if not previously contested.
- Respect for procedural guarantees is fundamental for the lawfulness of precautionary measures.
Conclusions
In conclusion, judgment No. 50320 of 2023 represents an important step in the legal debate concerning precautionary appeals. It reiterates the obligation for the judge to provide clear and precise reasoning regarding "periculum in mora," highlighting the consequences of a lack of reasoning. Legal professionals must pay close attention to these aspects to ensure that procedural guarantees are always respected and the rights of interested parties are protected at every stage of the proceedings.
