Supervised Freedom: The Interest in Appealing Persists Even After the Measure is Revoked. Analysis of Supreme Court Ruling No. 10424/2024

Criminal law and criminal procedure are fields in continuous evolution, where every judicial pronouncement can have a significant impact on the protection of individual rights. In this context, the recent Ruling No. 10424 of 17/12/2024 (filed on 17/03/2025) by the Court of Cassation, First Criminal Section, presided over by Dr. S. V., with Dr. T. E. as rapporteur and Public Prosecutor Dr. A. R., offers a fundamental clarification regarding security measures, particularly concerning supervised freedom and the interest in appealing decisions related to it.

The issue addressed by the Supreme Court, in the case involving the defendant G. D., is of great practical relevance: what happens if, after appealing the declaration of enforceability of a security measure, this is subsequently revoked? Does the convicted person's interest in continuing the appeal persist? The Cassation's answer is clear and protects the citizen's position.

Supervised Freedom and Social Dangerousness: A General Overview

To fully understand the scope of the ruling, it is useful to take a step back and frame security measures. These, provided for by our Criminal Code (Articles 199 et seq.), are preventive measures aimed at neutralizing the "social dangerousness" of an individual. Supervised freedom (governed by Article 228 of the Criminal Code) imposes a series of prescriptions and controls on the individual, presupposing the assessment of social dangerousness at the time of application (Article 207 of the Criminal Code). However, dangerousness is not an immutable fact: Article 208 of the Criminal Code provides that the Supervisory Magistrate must periodically re-examine it, and if it ceases to exist, the measure must be revoked.

The Crucial Point of Ruling 10424/2024: The Interest in Appealing

The case examined by the Cassation revolved precisely around a situation where the Supervisory Court of Rome had rejected G. D.'s appeal against the declaration of enforceability of supervised freedom. While the appeal proceedings were pending, the Supervisory Magistrate had revoked the security measure, deeming the social dangerousness to have ceased "ex nunc," i.e., from that moment onwards. The question therefore arose whether the convicted person still had an interest in contesting the original lack of social dangerousness ("ex tunc").

The Supreme Court, with its ruling, affirmed a principle of law of fundamental importance, which guarantees full protection of the convicted person's rights:

In matters of supervised freedom, the convicted person who has appealed the measure declaring the security measure enforceable, alleging the "ex tunc" lack of social dangerousness, maintains a concrete and current interest in the acceptance of the appeal even if, in the interim, the supervisory magistrate, re-examining social dangerousness pursuant to Article 208 of the Criminal Code, has deemed it to have ceased, with the consequent "ex nunc" revocation of the measure.

Analysis of the Maxim: "Ex Tunc" vs. "Ex Nunc" and Its Consequences

The maxim of Ruling No. 10424/2024 is an example of legal clarity. It clearly distinguishes two moments and two temporal effects: the "ex tunc" challenge of the original social dangerousness and the subsequent "ex nunc" revocation of the measure. Let's look in detail at what this means:

• "Ex Tunc" Challenge: The convicted person appeals the measure, arguing that social dangerousness did not exist from the beginning, i.e., at the time the measure was declared enforceable. This challenge aims to retroactively nullify the measure.
• "Ex Nunc" Revocation: While the appeal is pending, the Supervisory Magistrate ascertains that social dangerousness has ceased. The revocation takes effect from that moment onwards, without annulling past effects.

The Cassation emphasizes that the interest in appealing persists even in the case of "ex nunc" revocation for several reasons. If social dangerousness did not exist "ex tunc," the application of the security measure would have been illegitimate from the outset. Ascertaining this original illegitimacy can have significant consequences for the convicted person, going beyond the mere cessation of the measure:

• The measure, even if revoked, can leave traces in the criminal record and influence future assessments, authorizations, or employment.
• An "ex tunc" assessment can correct an original injustice, eliminating the negative repercussions of an unfounded measure.
• In some cases, it could even open the way for claims for compensation for unjust deprivation of personal liberty.

In essence, "ex nunc" revocation remedies the situation only for the future but does not erase the "past" and any repercussions of an application of the measure that should not have been there from the beginning. The right to obtain a judicial assessment of the original legitimacy of a measure restricting personal liberty is a cornerstone of our legal system, reinforced by this ruling.

Conclusions: Protection of Rights and Jurisprudential Clarity

Ruling No. 10424/2024 of the Court of Cassation represents an important safeguard for the protection of fundamental individual rights. It reiterates that the right to a full judicial assessment cannot be rendered meaningless by subsequent events that, while improving the convicted person's situation in the present, do not resolve the issue of the original legitimacy of the measure. The clarity with which the Supreme Court has addressed the distinction between "ex nunc" cessation and "ex tunc" lack of social dangerousness serves as a beacon for legal professionals and an additional guarantee for citizens subjected to security measures. It is a constant reminder of the need for rigorous and continuous control over the existence of the prerequisites that limit personal liberty, at every stage of the proceedings.