Commentary on Judgment No. 24375 of 2023: Precautionary Measures in Sexual Offenses

Judgment No. 24375 of February 22, 2023, by the Court of Cassation, filed on June 7, 2023, represents an important ruling on personal precautionary measures, particularly concerning sexual offenses. The Court, presided over by G. Sarno and with V. Di Nicola as rapporteur, addressed crucial issues regarding the judge's assessment criteria, providing significant clarification on the application of precautionary measures.

Context of the Judgment

The central issue of the ruling concerns the judge's obligation to specify investigative needs in cases of precautionary measures for sexual offenses. The Court established that, in the presence of serious indications of guilt, it is not necessary to provide reasoning regarding the existence of specific investigative needs, nor to set a deadline for investigative activities. This aspect is based on the rebuttable presumption of the existence of precautionary needs, as provided for by Article 275, paragraph 3, of the Code of Criminal Procedure.

CRITERIA - Finding of serious indications of guilt for sexual offenses – Obligation of the judge who deems the risk of evidence tampering to exist to indicate the specific and mandatory needs relating to the investigations and to set their expiry date – Exclusion – Reasons. In the context of personal precautionary measures, the judge who deems serious indications of guilt to exist for sexual offenses is not required to provide reasoning regarding the occurrence of specific and mandatory investigative needs concerning the facts under prosecution, in relation to situations of concrete and current danger to the acquisition or integrity of evidence, nor is obliged to set the date by which the necessary investigative activity must be completed, given the existence of the rebuttable presumption of the existence of precautionary needs established by Article 275, paragraph 3, of the Code of Criminal Procedure. (In its reasoning, the Court added that it is, if necessary, up to the investigated person to indicate contrary elements that demonstrate the certain non-existence of the need, otherwise admitting an incorrect overlap between precautionary proceedings which follow, "ex positive iure", different rules).

Implications of the Judgment

This ruling has significant practical implications for the judicial system. In particular, it clarifies that the burden of proof regarding the non-existence of precautionary needs may fall on the investigated person, who must provide elements demonstrating the absence of a concrete danger to the acquisition of evidence. This departs from a practice where more detailed reasoning was required from the judge, simplifying the process and accelerating response times in cases of sexual offenses.

• Clarity on the criteria for assessing precautionary measures.
• Reduction of the motivational burden for the judge.
• Increased responsibility of the investigated person in contesting precautionary needs.

Conclusions

In conclusion, judgment No. 24375 of 2023 represents an important step in defining the modalities for applying precautionary measures in cases of sexual offenses. With its decision, the Court of Cassation not only clarifies the judge's responsibilities but also offers a new perspective on the balance between investigative needs and the rights of the investigated person. This could have a significant impact on the management of criminal proceedings in the future, especially in a context as sensitive as that of sexual offenses.