The Supreme Court Clarifies the Prohibition of Pre-Trial Detention for Over-70s: Note on Judgment No. 13111/2025

With ruling No. 13111 of February 19, 2025 (filed April 3, 2025), the First Criminal Section of the Court of Cassation intervenes again on the issue of personal precautionary measures, clarifying the boundaries of the prohibition of pre-trial detention for defendants over seventy years of age. The case originated from an order of the Catanzaro Court of Liberty which had confirmed the detention in an institution for T. P., an over-70 individual investigated for crimes falling within the catalogue referred to in Article 275, paragraph 3, of the Code of Criminal Procedure. The interpretative intervention of the Supreme Court reiterates the primacy of the protection of the elderly person over the "reinforced" presumption of the adequacy of the prison measure.

The Regulatory Framework: Paragraphs 3 and 4 of Article 275 of the Code of Criminal Procedure

Article 275 of the Code of Criminal Procedure governs the criteria for choosing precautionary measures: paragraph 3 introduces a relative presumption of the adequacy of pre-trial detention for certain types of offenses; paragraph 4, conversely, establishes a prohibition on applying the same measure to individuals over 70 years of age, except in exceptional circumstances. The coexistence of two presumptions with opposing content has generated interpretative uncertainty, resolved by a generally consistent jurisprudence affirming the prevalence of the guarantee linked to age.

The Facts and the Supreme Court's Dictum

The presumption referred to in Article 275, paragraph 4, of the Code of Criminal Procedure, which excludes the applicability of pre-trial detention for those over seventy years of age, prevails over the presumption of the existence of precautionary needs and the exclusive adequacy of pre-trial detention referred to in Article 275, paragraph 3, of the Code of Criminal Procedure. Therefore, in such cases, the continuation of pre-trial detention for an over-seventy-year-old presupposes the existence of precautionary needs of exceptional relevance.

The Court annuls the Calabrian order with referral, holding that the lower court judge had not adequately reasoned on the existence of "exceptional needs." The interpretation, already adopted in previous rulings (Cass. Nos. 1438/2009, 11714/2012, 15911/2015), is thus confirmed, according to which the age limit constitutes a rule of prevalence for the protection of the dignity and health of the person, in line with Articles 27 of the Constitution and 3 of the ECHR.

Practical Implications for Defense

• Reinforced burden of proof: the Preliminary Investigating Judge/Preliminary Hearing Judge must indicate the concrete circumstances that make detention "indispensable," demonstrating the inadequacy of any other less burdensome measure.
• Emphasis on health conditions: the defense must produce medical documentation suitable to highlight the defendant's further vulnerability.
• Immediate appeal to the Court of Liberty: omission or lack of reasoning on the "exceptionality" allows for timely appeal of the order pursuant to Article 309 of the Code of Criminal Procedure.
• Relevance of European precedents: it may be useful to refer to ECHR jurisprudence on coercive measures disproportionate to age (e.g., Contrada v. Italy).

Conclusions

Judgment 13111/2025 reinforces a principle of legal civilization: pre-trial detention, especially in prison, is an extreme measure, and even more so when the suspect is over 70 years old. It is up to the judges to provide precise reasoning on the exceptional nature of the precautionary needs, avoiding automatic applications based solely on the type of crime. This is an important warning that legal professionals cannot ignore, from the perspective – constitutional and European – of a criminal justice system that respects fundamental rights.