Precautionary Measures and the Right to Defense: Cassation Court Judgment No. 27815/2025

Italian criminal procedural law constantly balances the need for effective justice with the protection of fundamental individual rights, foremost among which is the right to defense. Personal precautionary measures, which restrict liberty before a final judgment, represent a crucial point in this balance. In this context, the Court of Cassation, with Judgment No. 27815 of June 12, 2025, provided important clarifications on the mandatory nature of a preliminary interrogation in specific phases of the precautionary procedure, particularly when the Review Court intervenes upon an appeal by the Public Prosecutor.

Preliminary Interrogation and Review Proceedings

Coercive precautionary measures, which profoundly affect personal liberty, generally require a preliminary guarantee interrogation, as established by Article 291, paragraph 1-quater, of the Code of Criminal Procedure. This interrogation is a cornerstone of the right to defense. The case addressed by the Supreme Court concerned the application of a coercive measure by the Review Court, upholding the Public Prosecutor's appeal (pursuant to art. 310 c.p.p.), raising the question of the actual necessity of a preliminary interrogation even in this phase.

In matters of personal precautionary measures, the application by the review court of a coercive measure, in upholding the public prosecutor's appeal, does not need to be preceded, in the cases referred to in art. 291, paragraph 1-quater, of the Code of Criminal Procedure, by the preliminary interrogation of the suspect, as the right to anticipatory adversarial proceedings and the right to defense are ensured by the possibility for the suspect to appear at the hearing for the examination of the appeal and to request to be interrogated.

The Cassation Court's ruling, with rapporteur Dr. T. F. and president Dr. F. G., rejects the appeal of the defendant S. A., stating that the preliminary interrogation is not mandatory in this specific phase. The Court clarifies that the right to adversarial proceedings and defense is not diminished but is exercised differently: the suspect has the option to appear at the Review Court hearing and request to be interrogated, thereby exercising their right to provide clarifications and defend themselves.

Guarantees of the Right to Defense in Precautionary Proceedings

The Review Court plays a crucial role in overseeing precautionary measures. Judgment No. 27815/2025 emphasizes that, even without a preliminary interrogation under art. 291 c.p.p., the guarantees for the suspect are ensured:

• Notification of the appeal and the hearing, informing the suspect.
• Possibility to appear personally or through a defense counsel at the hearing.
• Option to request an interrogation during the hearing to present their position.
• Filing of briefs and documents for their defense.

This framework ensures effective and timely adversarial proceedings, in line with constitutional principles and European directives, without unduly burdening a procedure that requires speed.

Conclusions: A Necessary Balance

The decision of the Court of Cassation No. 27815/2025 consolidates a jurisprudential trend (already anticipated by rulings such as No. 14958/2019 and No. 17274/2020 of the United Sections) aimed at finding a balance between the effectiveness of precautionary measures and the safeguarding of individual rights. The absence of a preliminary interrogation in the review phase upon the Public Prosecutor's appeal does not undermine the right to defense but redefines it within the specific context, ensuring that the suspect always has the opportunity to assert their rights at an appropriate procedural stage. This contributes to greater clarity and predictability of the law, which is essential for the administration of justice.