Cassation Ruling No. 10946/2025: Stop to Second Incidental Appeal on the Same Measure
With ruling no. 10946, filed on March 19, 2025, the Sixth Criminal Section of the Court of Cassation reaffirmed a procedural principle of particular importance: when an appeal against a precautionary measure is already pending, it is not permissible to file a new incidental proceeding under art. 309 of the Code of Criminal Procedure on the same grounds. The decision, involving the suspect C. D., is of interest to lawyers, magistrates, and legal professionals due to its concrete implications for defense strategy.
The Case Examined by the Supreme Court
The case originated from a preliminary custody order issued by the preliminary investigation judge of Rome. The defense counsel, not yet appointed, had filed a request for review, which was subsequently declared inadmissible. Meanwhile, an appeal to the Cassation Court was filed against this rejection, which is still pending. Not satisfied, a new defense counsel filed a second request under art. 309 of the Code of Criminal Procedure, reiterating the identical grounds. The Liberty Court declared it inadmissible; a decision now confirmed by the Cassation Court.
Regulatory Framework and Jurisprudential Precedents
The codal framework combines several provisions:
- art. 96 of the Code of Criminal Procedure: governs the standing of the defense counsel to file an appeal;
- art. 309 of the Code of Criminal Procedure: regulates review against personal precautionary measures;
- art. 649 of the Code of Criminal Procedure: reiterates the principle of ne bis in idem, invoked in the ruling to support the uniqueness of the appeal.
Already rulings of the United Sections 34655/2005 and 18339/2004, as well as rulings 23371/2016 and 29627/2014, had excluded the possibility of duplicating precautionary appeals, to avoid an unreasonable paralysis of criminal proceedings and to prevent dilatory abuses.
The Ruling
It is inadmissible, while an appeal against the precautionary measure is pending, to file a further incidental proceeding concerning the same person and for the same act, based on the same elements. (In this case, the Court rejected the appeal against the measure by which the Tribunal, after the review against the preliminary order filed by an unqualified defense counsel had been declared inadmissible, had declared inadmissible another request under art. 309 of the Code of Criminal Procedure in the interest of the suspect, re-proposing the grounds already submitted, as the Cassation proceedings relating to the first appeal had not yet been concluded).
The Court recalls the ratio of procedural economy: the presence of a pending appeal prevents the same measure from being re-examined, avoiding conflicting decisions and ensuring certainty in the proceedings. The right to defense remains intact, as the suspect can assert their reasons within the first and only appeal.
Practical Implications for the Defense
The principle affirmed requires criminal defense lawyers to:
- promptly verify their standing to file for review;
- coordinate defense activities to avoid overlapping appeals;
- concentrate grounds in the first instance of review, knowing that a subsequent "review of the review" will not be permitted;
- consider any Cassation appeal as a conclusive and non-overlapping stage.
Conclusions
Ruling 10946/2025 follows a line of jurisprudence aimed at combating the abuse of precautionary incidental proceedings and preserving the linearity of the process. For legal professionals, this means clarity: only one avenue of appeal at a time, full respect for the adversarial principle but without repetitive maneuvers. A warning for the defense to carefully plan the timing and content of appeals, avoiding negatively impacting the credibility of their strategy with identical requests.
